eLex May 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCriminal Law 
New Library ResourcesFamily Law 
 Book ReviewsLabour and Employment Law 

News


In the News

Office of the Superintendent of Financial Institutions Canada released its 2022-2025 Strategic Plan.

Replace “Interns” with “Articling Students”. 5 Tips from a Law School Librarian for Assigning Research Projects to Interns by Matthew Flyntz, in the ABA Journal.
“As a law school reference librarian, I field a lot of questions from law students working at internships, externships and summer jobs. Over the years, I’ve seen some recurring issues with the research assignments given to law students, and I thought it might be helpful to discuss some of them here.”

Sarah Nixon. Two Visions of Reconciliation. (2022) 27 Appeal 42
“Reconciliation has become a popular and contentious term in Canadian politics, media, jurisprudence, and legal education. In this paper, I explore what is at stake in our approach to reconciliation by contrasting two prevailing forms. First is a form pursued in Canadian jurisprudence which I refer to as “reconciliation to Crown sovereignty.” !e second is a form advocated by numerous scholars and Indigenous leaders which I call “reconciliation as treaty.”


Court Notices & Practice Directions

All COVID-19 related Notices and Practice Directions are available here.

Court of Queen’s Bench

Notice – April 12, 2022 – Amendments to the Court of Queen’s Bench Rules

Provincial Court

Notice – Resumption of JJP Dockets in the communities of Cross Lake, Gods Lake Narrows, Nelson House, Norway House, Oxford House, Shamattawa and Split Lake (April 19, 2022)


Discipline Digests

The Law Society of Manitoba v. Fiorino, 2022 MBLS 3

New Library Resources

New in Print

Employment Law during a Pandemic, Sean J. O’Donnell, LL.B.

“Developed in response to the pandemic, this handy resource acts as a one-stop reference for employment lawyers, litigators, in-house counsel and other human resources professionals who are charged with dealing with the employment law issues that have arisen during and as a result of the COVID-19 crisis. Author O’Donnell, an experienced employment lawyer, is particularly well-positioned to offer general guidelines and best practices for addressing those issues, as well as to provide insight into the relevant legislation and case law related to COVID-19. Featuring case studies based on the COVID-19 outbreak, this text includes answers to the most pressing employment- and pandemic-related questions that lawyers and other professionals are grappling with at this time.”

Annotated Firearms Act & Related Legislation, 5th Edition, Jonathan Keene Brunet, Solomon Friedman, Fady Mansour

“This comprehensive guide to firearms legislation in Canada provides you with a fully annotated version of the Firearms Act, Part III and other related sections of the Criminal Code, and relevant provisions of the National Defence Act and the Youth Criminal Justice Act.”

New eResources

Will Week April 2022

Will Week is a week-long series of free public events to bring awareness to the importance of wills and estate planning. Seminars start Tuesday April 26, 2022. Visit the Library’s events calendar for session and registration information.

The event is a collaboration between the Manitoba Bar Association, The Winnipeg Foundation and the Public Guardian and Trustee. To learn more about Will Week, visit the Winnipeg Foundation website.

Visit our virtual book display here to see all the print and digital resources the library has to offer.

Journals Update

New articles from the following journals are now available for Law Society members upon request.

  • Canadian Family Law Quarterly
  • Intellectual Property Journal
  • Journal of Parliamentary and Political Law
  • McGill Law Journal
  • National Journal of Constitutional Law
  • Ottawa Law Review

For a pdf copy of these or other legal journal articles email us at library@lawsociety.mb.ca.


Book Reviews

Review taken from the Canadian Law Library Review, Vol. 47 Issue 1. This title is available in e-book format to LSM members as part of Emond Publications’ Criminal Law Series,

Search and Seizure. By Nader Hasan et al. Toronto: Emond, 2021. xxix, 729 p. Includes table of cases and index. ISBN 978-1-77255-635-3 (softcover) $159.00.

“The common law and case consideration reveal that search and seizure are pivotal elements of the criminal justice system. The foreword notes that these concepts are at the heart of that system. The authors, who bring academic, Crown counsel, and defence experience to this project, have assembled an impressive amount of pertinent detail for examination”

“Throughout this publication, the authors have incorporated many highlighted areas, titled Practice Points, that are designed to appeal to those who will be using this resource as a tool for court. Accordingly, this publication has considerable value for those learning about the state of search and seizure in Canada. It is also an asset for the practicing lawyer seeking to stay abreast of case law in this complex area.”

Events

Step into the Estate Plan for a Complex Family

Zoom Video Conference
May 24, 2022
12:00 PM – 01:30 PM

The panel, comprised of members of the Society of Trust and Estate Practitioners (“STEP”), will work through a case study featuring a blended family, and discuss spousal agreements and family property claims, structuring an inheritance for a disabled beneficiary, the impact of a beneficiary’s U.S. residency, the use of insurance to supplement or implement an estate plan, the impact of a change in the testator’s domicile, and the importance of an interdisciplinary approach to estate planning.  

PANELISTS: 
Tricia Carver, CPA-CA, CFP, TEP, Insurance Advisor, National Bank Insurance
Christa Walkden, CPA(ND), MST, TEP, CPA-CA, Director – Tax and Estate Planning, The Asper Family
Mariska Loeppky, B. Comm (Hons.), CPA, CA, TEP, CFP, Director, Tax and Estate Planning, IG Wealth Management
Harmanjit Mavi, JD/MBA, TEP, Wills and Estates Lawyer, MLT Aikins LLP
Krista Clendenning, JD, TEP, Wills and Estates Lawyer, Tradition Law LLP
MODERATOR: 
Daniel Watts, JD, TEP, Estate and Trust Consultant, Assante Wealth Management

Please RSVP (PRE-REGISTRATION IS REQUIRED) to the Manitoba Bar Association online at www.cbapd.org. The link to join the meeting will be sent the morning of the meeting.

Substantive Law


Administrative Law

Canada (Attorney General) v. Robinson, 2022 FCA 59: Issue of whether the holder of an inshore fishing license must personally carry out the activities authorized by the licence. Licence holder can apply for permission to substitute another person if they are medically unable to perform the activity, subject to a five-year limit. The department had allowed respondent permission to extend the substitution for longer than five years, but gave notice that 2016 would be the last year. FCA ruled on whether the trial judge adopted the correct standard of review, and then, whether he applied it correctly. Appeal dismissed. (Further comment noted below.)

A Maze in Corn Inc. v. Manitoba Emergency Measures Organization et al, 2022 MBCA 38: Application seeks leave to appeal a decision of the Manitoba Disaster Assistance Appeal Board. Decisions are only allowed with leave of the Court of Appeal and only on a question of law. Applicant raises four grounds of appeal. Leave to appeal granted on the issue of compensable economic loss.

Mark Mancini. The Sunday Evening Administrative Review, Issue #37, April 10, 2022. Comment on Canada (Attorney General) v. Robinson, 2022 FCA 59.


Civil Litigation

McDonald v. Bialowas et al, 2022 MBCA 39: Appeal of decision (2021 MBQB 161) dismissing claim for a declaration that a door in the appellant’s building is governed by, required and compliant with the 1941 National Building Code. Appeal dismissed.

Nguyen v. Winnipeg (City of), 2022 MBCA 33: Issue of whether a judgment was an interlocutory order which requires leave to appeal or if it was a final order, allowing an appeal as of right. Analysis of the difference between the two, in a slip and fall case. Steel, J.A. finds the City is allowed to appeal as of right.

Wilde et al v. The Rural Municipality of Taché et al, 2022 MBCA 31: Appeal of dismissal of application to extend time to commence an action against the respondents for defects in the design and construction of their residence. CA determined that application judge correctly determined that the appellants ought to have known there were foundation problems several years prior to acting on it. Appeal dismissed. 

Group III Diversified Inc v Winnipeg (City of), 2022 MBCA 30: Appeal of order assessing compensation in an expropriation case. Land Value Appraisal Commission (LVAC) assessed compensation of $177,057.75; appellant was seeking $5,749,000. Pfuetzner, J.A. determined reasons from LVAC were deficient such that they did not allow for appellate review. Matter sent back to LVAC for a new hearing in accordance with guidance provided in these reasons.

Winnipeg Condominium Corporation 479 v. Frohlinger, 2022 MBCA 29: Appeal of decision discharging a mortgage held by the appellant against the title to a parking unit. Discussion of development where parties are in a non-arms-length relationship. Court found no reviewable error of fact or law; appeal dismissed.

The City of Winnipeg v. 3177751 Manitoba Ltd., 2022 MBQB 85: Defendant seeks an order disqualifying a law firm (Taylor McCaffrey LLP) from acting for the City of Winnipeg on an expropriation hearing. Defendant claims firm is in a conflict of interest because it had acted for the defendant and some of its affiliates over the last 20 years. Examination of the law of conflict of interest in the legal profession and discussion of “bright line rule”. Motion dismissed.

Winnipeg (City) v. Caspian Projects Inc. et al., 2022 MBQB 81: Resolution of payment of $327,200 found to be a civil bribe. Joyal, C.J.Q.B. determined that it should be treated as damages for breach of trust, payable to the City. Analysis includes caselaw re damages in an amount equivalent to the bribe.

3065448 Manitoba Ltd. v. Bolay, 2022 MBQB 65: Contract dispute. Issue over quality of work as well as length of time to complete the project. Abel, J. determined time was not of the essence, so the lack of a guaranteed completion date was not enough of a factor to allow the plaintiffs to issue a stop-work order. Deficiency in workmanship was repairable, and defendant was willing and able to repair it. Corporation entitled to damages of 75% of the contract, since it had completed 75% of the work; Bolay entitled to damages for repairs recommended by expert report of $21,200.

Merchant Law Group v. Champagne, 2022 MBQB 64: Appeal of small claims court officer’s decision requiring appellant to pay respondent fees, disbursements and costs for legal services in a family law matter on the basis of quantum meruit. Counsel of record moved to withdraw but the family division justice refused the motion, even though the appellant advised that she would be representing herself. No formal contract or retainer drawn up between the parties. Toews, J. finds the hearing officer’s determination constitutes an error of law. Appeal allowed to the extent that the amount of the order be reduced by 70%, roughly the amount of work completed after the appellant’s termination of the relationship.

The Rural Municipality of Macdonald v. Samborski, 2022 MBQB 54: Hearing over penalty for contempt. Defendant refused to obey an interim injunction restraining them from composting on a property, in violation of a municipal by-law. Penalty codified under Queen’s Bench Rule 60.10. Analysis of caselaw on fines for contempt. Suche, J. found a reasonable fine was $5,000 for the defendant Leonard Samborski, $10,000 for Samborski Environmental and $40,000 for costs in favour of the R.M.

J-Kap v. City of Winnipeg, 2022 MBQB 49: Plaintiff sued City of Winnipeg in negligence by issuing a deficient building permit. Plaintiff purchased a house in need of repair and submitted an application with construction drawings that included a new foundation to replace the existing foundation. Building permit allowed for the construction of an addition to the rear of the building but no foundation work. Credibility of plaintiff at issue. City is successful.

Michael Ilg. Markets, Autonomy, & Mistake: The Judicial Control of Standard Form Contracts in a Cyber Age. (2022) 37 B.F.L.R. 229 (WLNC – request a copy).

This article addresses the growth of electronic standard form agreements involving consumers and considers the implications for general principles of contract law. In answer to the potential abuse of electronic standard agreements by technology companies, the Supreme Court of Canada, in Heller v. Uber, significantly expanded the equitable doctrine of unconscionability. 

Paul Ivanoff and Ethan McCarthy. Contract Termination: Considerations in Terminating for Default or for Convenience. 2021 J. Can. C. Construction Law 61. (WLNC – request a copy)

Parties enter into construction contracts with a common goal of building a successful project. Yet industry participants know all too well that hurdles can be encountered during project execution which will challenge the relationship between contracting parties. Many hurdles can be resolved amicably through the mechanisms provided in the contract. However, in certain instances, an owner or contractor may be so dissatisfied with the other party’s performance of their contractual obligations that they may view the relationship as unsalvageable and seek to bring it to an end by terminating the construction contract for default.


Criminal Law

R. v. Dussault, 2022 SCC 16: Issue of accused’s right to counsel before police questioning (s. 10(b) of the Charter). Did police provide accused with a reasonable opportunity to consult counsel, and were they required to provide him with a further opportunity to consult counsel before interrogating him. Appeal dismissed. Per Moldaver J. (Wagner C.J. and Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring):

[3] For reasons that I will explain, in the unique circumstances of this case, I am satisfied that the police were required to provide Mr. Dussault with a further opportunity to consult counsel before questioning him. My reasons for reaching that conclusion, however, differ from those of the Court of Appeal. In my opinion, there were objectively observable indicators that the police conduct in this case had the effect of undermining the legal advice that the lawyer provided to Mr. Dussault during their telephone call. Therefore, even if the call was a complete consultation in its own right, the police were nevertheless required to provide Mr. Dussault with a second opportunity to consult counsel. They failed to do so and thereby breached his s. 10(b) rights. I would dismiss the appeal.

R. v. J.D., 2022 SCC 15: Issue of continuation of proceedings before another judge. Judicial interpretation of s. 669.2(3) of the Criminal Code – rules to follow if a trial judge dies or is unable to continue when no adjudication has been made or verdict rendered. Appeal allowed, convictions and sentences restored. Per Côté J. (Wagner C.J. and Moldaver, Karakatsanis, Brown, Rowe, Martin, Kasirer and Jamal JJ. concurring)

[4] With all due respect, I conclude that the Court of Appeal erred in its interpretation and application of s. 669.2. There is no reason to require an inquiry that is not provided for by law where the parties have consented to the filing, in a trial that was commenced again, of a transcript of testimony given at a first trial. Such an inquiry would completely alter the judge’s role, minimize the judge’s ability to assess the transcript of prior testimony and run counter to the presumption of the competence of counsel.

R. v. Gerrard, 2022 SCC 13: Oral reasons dismissing appeal of 13 domestic violence related convictions delivered by Moldaver, J. Trial judge’s reasons show that she instructed herself correctly on the W.(D.) test. Trial judge assessed complainant’s credibility as a direct response to accused’s defence at trial.

R. v. Tim, 2022 SCC 12: Issue of infringement of the right against arbitrary detention under s. 9 of the Charter. Police officer arrested accused based on a mistake of law about the legal status of a substance found in the accused’s vehicle.  Per Wagner C.J. and Moldaver, Côté, Rowe, Kasirer and Jamal JJ.:

[4]  For the reasons that follow, I would dismiss the appeal. The police breached s. 9 of the Charter by arresting the appellant based on a mistake of law about the legal status of gabapentin. They then breached s. 8 of the Charter by searching his person and car incident to the unlawful arrest. … Although all the impugned evidence was “obtained in a manner” that breached the Charter, I would not exclude it under s. 24(2). The Charter breaches were at the less serious end of the scale of culpability and only moderately impacted the appellant’s Charter-protected interests. On the other side of the ledger, the evidence was reliable and essential to the prosecution of serious offences. In my view, weighing these considerations, the admission of the evidence would not bring the administration of justice into disrepute.

Per Brown J. (dissenting)

[104] Taking that into account, and accepting my colleague’s discussion of the other lines of inquiry under R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that admitting the evidence would bring the administration of justice into disrepute. I would therefore allow the appeal, exclude the evidence, and substitute verdicts of acquittal on all charges.

R. v. Stairs, 2022 SCC 11: Issue of whether search of accused’s home was a breach of his s. 8 Charter rights. Recognition of the potential of violating privacy through a warrantless search of a home; is the area sufficiently proximate to the arrest to provide a link. Appeal dismissed: Wagner, C.J. and Moldaver, Rowe, Kasirer and Jamal, J.J.:

[10] Applying the stricter standard to this case, the police, in our view, had reason to suspect that there was a safety risk in the basement living room and that their concerns would be addressed by a quick scan of the room, which was the least intrusive manner of search possible in the circumstances. It follows that Mr. Stairs’ s. 8 Charter rights were not breached, and the drug evidence was properly admitted. Accordingly, we would dismiss the appeal.

Karakatsanis, Brown and Martin, J.J. (dissenting):

[107] Like my colleagues, I conclude that the common law sets too low a bar for searches incident to arrest inside a home. Privacy demands more. When officers seek to search a home for safety purposes — as they did here — the appropriate standard is reasonable suspicion of an imminent threat to police or public safety.

Côté, J. (concurring);

[174] However, in the present case, I would not interfere with the trial judge’s finding that the police were acting in good faith on their understanding of unsettled law. As I have explained, the justificatory standard for and permissible scope of a residential search incident to arrest were unclear at the relevant time. Further, society has a strong interest in the adjudication of a charge involving a large quantity of a highly dangerous and pernicious street drug.

R. v. Moar, 2022 MBCA 36: Accused appeals his conviction for second degree murder and the period of parole ineligibility. Appeal is based on the grounds that the trial judge erred in instructing the jury on intention and intoxication. Analysis of the trial judge’s instructions and the law around jury instructions. Conviction appeal dismissed. Accused argues that the trial judge erred in apply his Gladue factors in determining his sentence. Leave to appeal the sentence granted, but appeal dismissed.

R. v. G.S., 2022 MBCA 35: Accused appeals his convictions for sexual assault with a weapon, choking to overcome resistance and uttering threats. Crown seeks leave to appeal and if granted, appeals the sentence. Accused seeks to admit fresh evidence. Evidence against the accused included an audio file made by the victim during the assault. He seeks to tender opinion evidence of an expert that the audio file was manipulated. Conviction appeal dismissed; leave granted to appeal the sentence, but also dismissed.

R. v. Bunn, 2022 MBCA 34: Accused appeals his conviction for sexual assault; Crown seeks leave to appeal, and if granted, appeals the sentence. Accused argues that the trial judge applied uneven scrutiny in her analysis of his evidence versus the victim, and returned an unreasonable verdict. CA dismissed the convictions appeal. Crown allowed leave to appeal sentence, but appeal dismissed.

R. v. Keating, 2022 MBCA 32: Crown appeal of sentence for break and enter and committing assault, and uttering threats. Sentence was 18 months’ incarceration for first charges, and an additional six months incarceration, concurrent followed by three years’ probation. Crown alleges trial judge erred by underestimating the gravity of the offences and the accused’s moral culpability. Court agrees; new sentence (jointly recommended) of four years’ and six months (concurrent).

R. v. Bordian, 2022 MBQB 83: Trial over charge of attempted murder and aggravated assault. Both the accused and the victim testified with two very different versions of the events. Analysis and consideration of the credibility of the evidence of both parties. Accused acquitted of attempted murder, convicted of aggravated assault.

R. v. C.B., 2022 MBQB 63: Accused pleaded guilty to three counts of mischief and was sentenced to 15 months of supervised probation. He appeals, arguing that the sentencing judge erred in principle and submits that the appropriate sentence is a conditional discharge. Harris, J. found sentencing judge erred by focussing almost exclusively on the offence and its impact on society. Further analysis is required on whether a discharge would not be contrary to the public interest. Appeal allowed.

R. v. Peters, 2022 MBQB 59: Accused charged with sexual assault and failure to comply with an undertaking. Complainant and accused testified. Leven, J. used W.(D.) framework to analyse reasonable doubt. Trial was not an issue of consent; both parties described two different scenarios. Accused found guilty.

Hudson (Re), 2022 MBPC 20: Determination of who will be granted standing in the Inquest into the death of Eishia Hudson. Ms. Hudson was killed by a WPS officer who discharged his firearm. Presumption of inquest is to determine the circumstances relating to the death and determine what, if anything, can be done to prevent similar deaths in the future. Detailed explanation of who will be granted standing, who will not, and why.

R. v. Anobis, 2022 MBPC 17: Accused is charged with assault on a peace officer (x2) and resisting arrest. Evidence of accused and evidence of police officers differ. Evidence includes testimony of accused, police officers, taser report, and video recording provided by the accused. Heinrichs, P.J. observes inconsistencies in all the testimony. Although the judge finds issues with the accused’s evidence, there is a reasonable doubt as to his guilt.

R. v. D.P., 2022 MBPC 16: Accused is charged with possession of a Schedule 1 drug after a traffic stop. Traffic stop was legal; accused claims vehicle was searched without a warrant. Onus on accused to establish on a balance of probabilities that a breach occurred. Evidence of police officers and accused both consistent and logical; however, judge accepts police evidence.

R. v. James, 2022 MBPC 15: Sentence for guilty plea to the offence of manslaughter. This was a violent, unprovoked attack with a knife in a public space. Accused was extremely intoxicated at the time, raising doubt that the Crown could prove he had the intent necessary to support a conviction for murder. Pre-sentence report and a Gladue assessment were filed with the Court. Accused sentenced to 10 years with a one year reduction due to severe Gladue factors.

Application pursuant to section 490(1) of the Criminal Code for detention of things seized, Envelope 28693, 2022 MBPC 14: Police (and counsel) appeared in an ex parte proceeding requesting a detention order pursuant to s. 490(1) of the Criminal Code. Report had been filed twice but was rejected and no order had been made. Issues of jurisdiction, effect of failure to file the report in seven days, and whether a detention order should be made in this case. Krahn, A.C.J. issued the order.

R. v. Rosin, 2022 MBPC 10: Ruling on admissibility of community impact statement (CIS), pursuant to s. 772.2(1) of the Criminal Code. Canadian Centre for Child Protection (C3P) wished to provide a statement which would provide general information about online luring and reference case law and information gathered from reported offences and comments from those who have been victimized. Defense argues the statement contains information that is inadmissible at law. Lord, A.C.P.J. references other cases both in Manitoba and other jurisdictions where C3P CIS were admitted. The statement is admitted.

R. v. Maytwayashing, 2022 MBPC 6: Sentencing decision after conviction for robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Most serious part of the offence is the robbery. Crown submits a four year sentence is appropriate; defence submits Gladue principles call for a more lenient custodial sentence. Sentencing judge found accused had shown signs of rehabilitation while out on bail. Appropriate sentence is 18 months custody, with three months enhanced credit for pre-sentence custody.

Camas Ussery. The Myth of the “Ideal Victim”: Combatting Misconceptions of Expected Demeanour in Sexual Assault Survivors.(2022) 27 Appeal 3.

… This paper explores the research on trauma and demeanour and explains why it is critical that the legal profession appreciates its importance. The paper looks at many available yet underused options within the Canadian criminal justice system to mitigate the effects of trauma on demeanour and support survivors, and argues that their increased use would benefit survivors while maintaining the presumption of innocence that lies at the heart of a criminal trial.

Don Stuart. Fan: The Vexing Question of Distinguishing Mistakes of Fact from Those of Law. (2022) 75 C.R. (7th) 22 (WLNC – request a copy). In R. v. Fan, … the courts were confronted with the argument that the accused had a number of licences that made their grow operation legal. The trial judge rejected the defence and convicted. When the appeal reached the Court of Appeal Justice Trotter dismissed the appeal on the basis that the trial judge did not accept the evidence that they believed the grow operation was legal. In the alternative he carefully explored what he rightly dubbed the “vexing” question of whether, if there was such a mistake, it was one of law or fact. 


Family Law

Johnson v. Miazga, 2022 MBQB 80: Motion for recusal. Respondent requests Petersen, J. be recused as the case conference judge on the basis of alleged apprehension of bias on an individual basis as well as an institutional basis, because petitioner’s counsel is the daughter of a former family division justice. Extensive analysis of the law regarding recusal. Motion dismissed.

Eichkorn v Eichkorn, 2022 MBQB 79: Master’s report re separation date. Parties are two years apart on date of separation. In absence of agreement, s. 16 of The Family Property Act provides that the separation date is the date when the spouses last cohabited with each other. Affidavits of the petitioner, respondent and one witness served as the direct evidence. Parties lived under the same roof until June 2020; dispute is over when they began to live separate and apart under the same roof. After analysis of evidence, Master accepts petitioner’s position.

J.L.B. v. C.D.R., 2022 MBQB 74: Claims for divorce, parenting arrangements and child support. Parties agreed to an order of joint custody; mother sought an order of primary care and control with final decision-making authority and specified periods of care to the father, with certain conditions. Father sought a shared care arrangement with equal decision-making authority. Father has a significant history of drug addiction and mental health concerns. Under best interests of the child, mother is awarded primary care and control. Father is ordered to provide annual financial disclosure; divorce judgment issued.

Chanel v. Chanel, 2022 MBQB 70: Motion by petitioner (wife) for an order of summary judgment incorporating the terms of a purported settlement agreement concerning child and spousal support, and the sharing of assets and liabilities. Respondent (husband) opposes, stating he didn’t agree to the settlement agreement. Both parties were represented by experienced counsel. Analysis of appropriateness of summary judgment in a family law context. Doyle, J. finds that there is, wife is entitled to summary judgment pursuant to Rule 70.18.1.

R.J.S. v. The Director of Child and Family Services, 2022 MBQB 69: Objection to placement of name on Child Abuse Registry. The Registry is provincial jurisdiction and not tied to a criminal prosecution, so the proceedings are a civil process, determined on the civil burden of a balance of probabilities. Evidence included testimony of applicant and (now adult) child, plus initial disclosure email made to ECFS staff, written response to NOPI by R.J.S., and other documents. On a balance of probabilities, Court is satisfied that R.J.S. did abuse his child.

Windsor v. Hink, 2022 MBQB 30: Reference for accounting under The Family Property Act. Parties have kept most of their funds separate. Master must consider which funds have been intermingled. Consideration of numerous recent decisions on the issue of tracing and whether assets that are alleged to be inherited or pre-acquired remain exempt. Analysis of growth of funds in child’s RESP funded, in part, by child support received by mother, and whether a portion of that should be considered an asset of the wife and shareable with the husband (issue of “excessive gifting”).

Nicholas Bala and Rachel Birnbaum. Focusing on Children in Post-Separation Parenting. The Lawyer’s Daily, April 27, 2022.

Rollie Thompson, Q.C. SSAG FAQs 2022: Your Frequently (or occasionally) Asked Questions About the SSAG, and Some “Answers”.


Labour and Employment Law

People Corporation v. Mansbridge, 2022 MBCA 37: Plaintiff sought an interlocutory injunction against the defendant (a former employee) and his new employer to enforce restrictive covenants and a confidentiality clause. Motion was dismissed; this is the appeal. Issue of standard to be applied when considering the test set out in RJR-MacDonald Inc. v. Canada (Attorney General). CA determined a “strong prima facie case” is the standard. Appeal dismissed. 

Thorne v. NNCEA Inc.,2022 MBQB 62: Action for remedies in connection with termination of employment in June 2016. Defendant moves to dismiss the plaintiff’s action for delay pursuant to Rule 24.01 of the Queen’s Bench Rules. Plaintiff filed statement of claim in May 2017, amended December 2018; statement of defence filed February 2019. Plaintiff and his counsel discussed a reply between March and May 2019. Plaintiff made offer to settle in May 2020. Issues of whether there has been a delay, and whether the delay has resulted in significant prejudice. Both parties contributed to the delay. Chartier, J. found there was enough activity to move the file forward to dismiss the motion.

Legislation


Federal

House of Commons
44th Parliament, 1st Session

C-11 An Act to amend the Broadcasting Act and to make related and consequential amendments to other Acts
At second reading in the House of Commons
Show details

C-19 An Act to implement certain provisions of the budget tabled in Parliament on April 7, 2022 and other measures
At second reading in the House of Commons
Show details

C-237 An Act to amend the Federal-Provincial Fiscal Arrangements Act and the Canada Health Act
At second reading in the House of Commons
Show details

Senate

S-203 An Act respecting a federal framework on autism spectrum disorder
Short title: Federal Framework on Autism Spectrum Disorder Act
At third reading in the Senate
Show details

S-241 An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals)
At second reading in the Senate
Show details

S-243 An Act to enact the Climate-Aligned Finance Act and to make related amendments to other Acts
At second reading in the Senate
Show details


Provincial

Bill NumberSponsored byAs proposed   (Click PDF for the bilingual version)
228Ms. NaylorThe Eating Disorders Awareness Week ActPDF
229MLA LindseyThe Transportation Infrastructure Amendment ActPDF
230Mr. WasyliwThe Budget Impact Reporting ActPDF
232Mr. MalowayThe Catalytic Converter Identification ActPDF
233Mr. WishartThe Engineering and Geoscientific Professions Amendment ActPDF
234Mrs. SmithThe Drug-Related Death Bereavement Day ActPDF
235Mr. AltomareThe Public Schools Amendment Act (Nutrition Programs)PDF

Proclamations

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 48The Reducing Red Tape and Improving Services Act, 2021 s. 51 Jun 202227 Apr 2022Proclamation
SM 2022, c. 7The Peak of the Market Reorganization Act Whole Act20 Apr 202212 Apr 2022Proclamation

eLex April 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCriminal Law
New Library ResourcesFamily Law 
Book ReviewsLabour & Employment Law 
EventsWills, Trusts & Estates 

News


In the News

Budget season, federal and provincial – On April 7, Budget 2022 was presented by the The Honourable Chrystia Freeland, Deputy Prime Minister and Minister of Finance, in the House of Commons. Highlights of the budget include a focus on housing, limiting greenhouse gases, and investment in low-carbon industries and the critical minerals sector.

Read the Government of Canada Budget 2022 news release here.

Meanwhile in Manitoba, the 2022 provincial budget is set to be delivered on Tuesday, April 12, 2022.


Save the date! – On October 27, 2022, the Court of Appeal of Manitoba will be hosting a Gala dinner at the RBC Convention Centre to honour the retirement of the Hon. Justice Richard Chartier, Chief Justice of Manitoba. This is sure to be an exceptional evening with special guest speaker, the Right Hon. Richard Wagner, P.C., Chief Justice of Canada. Details to come. Click here to see the announcement.


Court Notices & Practice Directions

Court of Queen’s Bench

March 9, 2022 – No need to self-isolate for out-of-province parties or witnesses  

Provincial Court

April 4, 2022 – Adult Criminal Matters in Thompson Court Centre

March 24, 2022 – New PC judge appointed in Thompson


Discipline Digests

The Law Society of Manitoba v Restall Jr., 2022 MBLS 2


New Library Resources

New from Emond’s Criminal Law Series

Qualifying and Challenging Expert Evidence is an essential guide for legal practitioners and expert witnesses participating in a criminal trial. Applicable to Crown, defence counsel, and the judiciary, this handbook uses clear and concise language to address all aspects of expert witness testimony from start to finish.

Authored by a respected team of cross-national legal experts, Qualifying and Challenging Expert Evidence integrates varied perspectives to achieve a balanced, engaging, and comprehensive approach unmatched by any other resource. It maintains a practical focus while weaving strategic guidance with an analysis of case law and the relevant provisions of the Criminal Code and the Canada Evidence Act. Ranging from psychiatry to forensics and from pathology to technology, this resource will prepare legal practitioners for the procedural, tactical, and strategic elements of qualifying and challenging expert witnesses in criminal cases.

New Print Titles Coming Soon

Employment Law during a Pandemic, Sean J. O’Donnell, LL.B.

Developed in response to the pandemic, this handy resource acts as a one-stop reference for employment lawyers, litigators, in-house counsel and other human resources professionals who are charged with dealing with the employment law issues that have arisen during and as a result of the COVID-19 crisis. Author O’Donnell, an experienced employment lawyer, is particularly well-positioned to offer general guidelines and best practices for addressing those issues, as well as to provide insight into the relevant legislation and case law related to COVID-19. Featuring case studies based on the COVID-19 outbreak, this text includes answers to the most pressing employment- and pandemic-related questions that lawyers and other professionals are grappling with at this time.

New eResources

New Family Law Resources from Justice Canada

New Family Law resources have recently been released by the Justice Department as part of their free online legal training resources for professionals, Justice Canada Changes to Family Laws. Along with a family violence toolkit, three new free and accredited courses are available to help lawyers understand the 2021 amendments to the Divorce Act.


ICYMI: Journals Update

New articles from the following journals are now available for Law Society members upon request:

  • Estates Trusts & Pensions Journal
  • Canadian Criminal Law Review
  • Criminal Law Quarterly
  • Canadian Journal of Administrative Law & Practice
  • Canadian Journal of Law and Jurisprudence
  • Education and Law Journal
  • Indigenous Law Journal
  • University of Toronto Law Journal
  • Windsor Yearbook of Access to Justice

To see the full list of articles click here. For a pdf copy of the listed articles, email us at library@lawsociety.mb.ca.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 46 Issue 4

Artificial Intelligence and the Law in Canada. Edited by Florian Martin-Bariteau and Teresa Scassa. Toronto: LexisNexis Canada Inc., 2021. xxvii, 422 p. Includes contributor biographies, foreword, table of contents, table of cases, and index. ISBN 978-0-433-51467-1 (hardback) $195.00.

“[..] Artificial Intelligence and the Law in Canada highlights all the ways in which AI has had and will continue to have an impact on significant aspects of Canadian society. It explains how the law has responded to or might respond to issues raised by AI’s current or potential applications within the current legal framework. Where appropriate, it considers how the law could or should be reconceptualized to respond to these issues.

[…] If readers were uncertain before, this book makes it abundantly clear that AI is here, and it is here to stay. In this context, Artificial Intelligence and the Law in Canada is an essential read for practicing lawyers across all areas of law, judges, policymakers, and of course legal academics, and is a must-purchase for all types of law libraries.” – reviewed by Katerina Daniels


Events

The New Limitations Act

Apr 28 2022

1:00 pm – 4:00 pm

Significant changes to the limitation periods for civil causes of action will come into effect on September 30, 2022, bringing Manitoba’s regime into alignment with many other provinces. The new Limitations Act eliminates the various limitation periods for different causes of action under our current legislation and replaces them with a two-year ”basic” limitation period. It also shortens the “ultimate” limitation period to 15 years, with the exception of certain Aboriginal claims.

In addition to understanding the law, you will also need to think carefully about your system for diarizing matters and how you will communicate with clients about their claims.

This ½ day program will give you an overview of the new Limitations Act, covering key topics such as:

  • What does the new statute make simpler or more complicated?
  • Transition period
  • Discoverability – basic limitation period runs from the date the claim is discovered
  • Practice management considerations

Presenters
Bill Gange, Gange Collins
Tana Christianson, Professional Liability Claims Fund
Kelly Dixon, Green & Dixon
Sacha Paul, Thompson Dorfman Sweatman LLP

Register Now.

Substantive Law


Administrative Law

Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50: Decision of the Refugee Protection Division (RPD) finding that the respondent had “voluntarily reavailed herself of the diplomatic protection of Columbia” because she had used a Columbian passport to travel to Columbia and sought private protection. As a result, she lost her claim for protection. Federal court found RPD decision unreasonable. Reasonableness analysis conducted from paras 58-79. FCA agreed and offers RPD extensive guidance (para 80).

Thorkelson v.The College of Pharmacists of Manitoba et al., 2022 MBQB 29: Appeal of decision by College of Pharmacists to cancel appellant’s license. Appellant pled guilty to the felony of misprision in the U.S. Parties do not agree on the standard of review. Appellant argues this appeal is a new matter; respondents say it is appellate review, relying on Vavilov. Suche, J. provides an overview of the licence cancellation procedure of The Pharmaceutical Act. Analysis of whether “misprision of a felony” is an offence. Court concludes that cancellation of the appellant’s licences is not an appropriate penalty.

Paul Daly, Jennifer Raso and Joe Tomlinson. Administrative Law in the Digital World, 2022 CanLIIDocs 559.

…Given the vast scope, both current and potential, of the interfaces between administrative law and the digital world, our aim in this chapter cannot be to provide a comprehensive survey of the questions that occupy this growing part of the field, or those questions that may occupy it in the coming years. Instead, our aim is more modest but still, we hope, useful at this juncture: to provide a provocation for administrative law scholars regarding the necessity of engaging with developments concerning digital technology…

Terry Davidson. Follow-up Needed if Changes Come to Manitoba’s Social Services Appeal Process: Expert. The Lawyer’s Daily, 15 March 2022. Comment on amendments introduced to The Social Services Appeal Board Act.


Civil Litigation

Anderson v. Alberta, 2022 SCC 6: Advance costs and the requirement of impecuniosity. Cost of litigation is estimated at $5 million. Appeal allowed; Karakatsanis and Brown JJ. (Wagner C.J. and Moldaver, Côté, Rowe, Martin, Kasirer and Jamal JJ. concurring)

[4] We conclude that a First Nation government that has access to resources may meet the impecuniosity requirement if it demonstrates that it requires such resources to meet its pressing needs. While the impecuniosity requirement is guided by the condition of necessity, pressing needs are not defined by the bare necessities of life. Rather, and in keeping with the imperative of reconciliation, they ought to be understood from the perspective of that First Nation government. …

[7] In our respectful view, the case management judge erred in her impecuniosity analysis. While her finding that Beaver Lake is an impoverished community with pressing needs is unassailable, her findings were insufficient to conclude that Beaver Lake had satisfied the legal test for impecuniosity.

[8] The matter of Beaver Lake’s impecuniosity, however, should be reconsidered in light of the reasons that follow, and to account for the passage of time which will likely have altered Beaver Lake’s current financial state. We would therefore allow the appeal and remit the matter to the Court of Queen’s Bench of Alberta.

Forsythe et al v. Labossiere et al, 2022 MBCA 28: Plaintiffs appeal an order directing the district registrar to cancel and discharge a caveat filed by the plaintiffs. Issue of whether the motion judge had jurisdiction to discharge the caveat and whether it was appropriate to dismiss the plaintiffs’ motion for a PLO. Judicial consideration of test from Bojkovic v. Rentz Bros Inc et al, 2010 MBCA 17. Discussion of caveat discharge under s.163 of The Real Property Act. Plaintiffs’ appeal granted.

Singh v. Brar, 2022 MBQB 60: Application for a declaration that a taxi vehicle licence belongs to the applicant. Respondent argues that he has a 50 percent beneficial ownership interest in the licence. Onus is on applicant to demonstrate that the respondent does not have an interest. Perlmutter, A.C.J.Q.B. found that she was not able to do that and therefore the parties are in a partnership and the respondent has a 50 percent beneficial ownership interest. Partnership is to be dissolved and licence to be sold. Remaining issue is determining the date of the dissolution of the partnership. Reference to a master to take accounts and determine the distribution of assets.

Kalo v. Microsoft Corporation, 2022 MBQB 56: Small claims action: dispute over loss of files from a Hotmail account which was deactivated by the defendant. Claimant lost access to the account and followed some procedures to regain access but did not complete them. After 60 days of no activity, defendant deactivated the account and all files and documents were deleted. Claimant is asking for damages of $15,000. Toews, J. found that the defendant provided claimant with an opportunity to retrieve his data and dismissed the claim.

Winnipeg (City) v. Caspian Projects Inc. et al., 2022 MBQB 53: Cross motions for summary judgment re City’s claims over cost overruns and other financial issues regarding the bidding and tendering of the contract to replace the WPS headquarters. Joyal, C.J.Q.B. finds that summary judgment is an appropriate forum and over 129 pages, decides that the City’s allegations have been proven and the defendants’ cross-motion ought to be dismissed. Discussion of admissible evidence to be considered by the court (para 108). Damages award determined starting at para 265.

Niata Enterprises Ltd. et al. v. Snowcat Property Holdings Limited, 2022 MBQB 50: Application for a declaration of entitlement to an easement over the respondent’s property, and an interlocutory injunction restraining the respondent from interfering with the easement. Applicants claim under proprietary estoppel and prescriptive easement. Discussion of the applicable law governing the establishment of a prescriptive easement. Application dismissed.

White Oak Commercial Finance, LLC v. Nygård Holdings, 2022 MBQB 48: Application by Receiver seeking several orders, and a separate motion seeking advice and direction regarding the additional use of the Preserved Proceeds. Discussion of a “substantive consolidation” and whether it should be applied in the facts and circumstances of this case. Analysis of the proper allocation of revenues generated from the sale of assets towards costs for professional fees. Consideration of the application of the law of subrogation. Summary of Orders/Declaratory relief found at para. 161.

Muzik v. Worthington et al., 2022 MBQB 44: Reasons on costs for decision reported at 2021 MBQB 263 where plaintiff was awarded damages of $1.6 million for defamation. No award of solicitor and client costs; party and party costs at a Class 4 level with some double costs due to refusal of a settlement offer; pre-judgment and post-judgment interest included. Summary noted at para. 45.

Papasotiriou-Lanteigne v. Tsitsos, 2022 MBQB 41: Appeal from a Master’s decision dismissing the action for long delay. Issue is over whether the plaintiff was under a disability, as QB Rule 24.02(3) states that any period of time a person is under a disability is not included when calculating the three years under Rule 24.02(1). Plaintiff argued that his conviction for murder and imprisonment counted as a disability. Discussion of the law on dismissal for an action for delay. Appeal dismissed.

Roque v. Peters, 2022 MBQB 34: Suit over providing intimate images to a third party without consent. Two statutory torts involved, under The Intimate Image Protection Act and The Privacy Act. Zinchuk, J. stated “It is the ability to control who sees images of one’s body which is ultimately central to this litigation” (para.33). Consideration of whether motives of defendant play a role when considering defence of public interest. Plaintiff is successful; general and aggravated damages awarded.

Manitoba Federation of Labour et al v. The Government of Manitoba, 2022 MBQB 32: Award of damages for breach of Charter rights in negotiation between the University of Manitoba and the University of Manitoba Faculty Association. UMFA is claiming damages on behalf of individual members and on behalf of the union itself. Discussion of the loss of trust in the union/membership relationship, as well as employee/employer relationship due to government interference. McKelvey, J. used the steps developed in Vancouver (City) v. Ward, 2010 SCC 27 to assess damages. Damages of just over $19 million are awarded.

Clovis Kemmerich. The Interpretation of Court Opinions. (2022) 35 Can. J.L. & Juris. 169 (WLNC – request a copy).

What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare them with the needs of the court opinions’ interpretation. The author argues that one must interpret court opinions according to the pragmatic model and endeavor to understand the meaning the judge intended for the text.

Terry Davidson. Manitoba Intimate Images Lawsuit Could Pave Way for Other Complainants: Lawyer. The Lawyer’s Daily, 14 March 2022. Comment on Roque v. Peters, 2022 MBQB 34, the first ruling on The Intimate Images Act.


Criminal Law

R. v. Vallières, 2022 SCC 10: Issue of amount of fine in lieu of an order for forfeiture of property that is proceeds of crime. Respondent was convicted of fraud, trafficking and theft of maple syrup. Trial judge had imposed a fine in lieu of an order for forfeiture equal to the value of the property ($10 million). Court of Appeal reduced it to $1 million, the value of the property that was proceeds of crime. Appeal allowed. Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

[1] This appeal gives the Court an opportunity to clarify the scope of judicial discretion when determining the amount of a fine to impose on an offender under s. 462.37(3) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), in lieu of an order for forfeiture of property that is proceeds of crime (“fine in lieu”). In particular, this Court must determine whether a court has the discretion to limit the amount of a fine in lieu to the profit made by an offender from their criminal activities and must delineate the circumstances in which a court may apportion between co‑accused the value of property that is proceeds of crime. This appeal serves, incidentally, as an occasion for this Court to reaffirm that a fine in lieu is ordered as a substitute for forfeiture and not as a punishment for the commission of an offence, although the fine is part of the sentencing process.

R. v. Samaniego, 2022 SCC 9: Issue of the scope of trial management power. Accused appealed his conviction on the basis that the trial judge erred by making rulings curtailing particular lines of questioning. From the headnotes:

Per Wagner C.J. and Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Three of the impugned rulings were free from error. The fourth ruling was erroneous in part; however, the curative proviso applies, as it occasioned no substantial wrong or miscarriage of justice.

Per Côté, Brown and Rowe JJ. (dissenting): The appeal should be allowed, the conviction set aside, and a new trial ordered. The trial judge’s exclusion of the security guard’s prior inconsistent statement made at the preliminary inquiry about who dropped and picked up the gun was an erroneous evidentiary ruling, not a trial management decision. This error cannot be saved by the curative proviso.

R. v. White, 2022 SCC 7: Oral decision: Appeal as of right based on dissent in NLCA. Respondent claimed ineffective assistance of counsel and sought a new trial. He claimed he had not been advised of his right to choose a trial in Provincial Court, Supreme Court with a judge alone, or Supreme Court with a judge and jury. He was convicted in Provincial Court. Dissent in CA did not agree that ineffective assistance of counsel was made out. Appeal allowed and matter remanded to CA to address respondent’s remaining grounds of appeal.

R. v. Brunelle, 2022 SCC 5: Oral decision: Crown appealed as of right, arguing that majority overstepped in its appellate role by reassessing the evidence. Accused claimed he acted in self-defence; trial judge rejected the theory.

When a verdict is reached by a judge sitting alone, there are two bases on which a court of appeal may be justified in intervening because the verdict is unreasonable: (1) where the verdict cannot be supported by the evidence; or (2) where the verdict is vitiated by illogical or irrational reasoning (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3).

R. v. Hjorleifson, 2022 MBCA 27: Motion by accused for an order pursuant to r. 46.2 of the Court of Appeal rules for the rehearing of his appeal. Test set out in Rémillard v. Rémillard, 2015 MBCA 42. Motion dismissed.

R. v. Tamana, 2022 MBCA 26: Accused appeals his convictions for kidnapping, aggravated assault, robbery with a firearm and other offences, and seeks leave to appeal his sentence. Accused has burden of establishing his claim of uneven scrutiny of the evidence. Appeal dismissed and leave to appeal the sentence denied.

R. v. J.M., 2022 MBCA 25: Accused appeals conviction for offences of sexual assault and sexual interference. He also seeks leave to appeal and if granted, appeal his sentence. Accused argues trial judge erred by admitting the victim’s video statement and that the verdicts were unreasonable. Examination of s. 715.1 of the Criminal Code and its application in this case. Conviction appeal dismissed and leave to appeal sentence denied.

R. v. Gromnisky, 2022 MBQB 58: Accused was convicted of impaired driving and sentenced to a minimum $1,000 fine and a minimum one year driving prohibition, leading to a suspension to his driver’s licence. He appealed and filed an application to have the order stayed which was granted. There being no written decisions in Manitoba, Martin, J. provides these reasons. He notes the different legislative and procedural requirements under the Criminal Code and The Highway Traffic Act. Test for a stay is noted in para 11.

R. v. A.S., 2022 MBPC 12: Sentencing decision where accused pleaded guilty to 17 child sexual abuse offences involving nine children, which took place over two and a half decades. Children were all known to him. Crown seeking a sentence of 30 years; defence 21 ¼ years. Relevant sentencing principles in this case are denouncing the offender’s conduct, deterrence, separating him from society, and to acknowledge the harm done to the victims. Much discussion of R. v. Friesen, 2020 SCC 9. Sentence for each offence should be consecutive, but the reasonable sentences add up to 105 ½ years. Sentence of 30 years reduced by pre-trial custody.

R. v. Sumner, 2022 MBPC 3: Sentencing decision where accused pleaded guilty to a residential break and enter, commit assault and an aggravated assault committed 18 days later. Matter heard in FASD Court. Both events were extremely violent. Video evidence provided for both. Devine, P.J. notes the lack of appropriate resources available to house the accused. Examination of the accused’s moral culpability given he is indigenous, suffers from FASD and other psychological diagnoses. Sentence for break and enter is 18 months, sentence on aggravated assault is four years, giving a total of five and a half years. Overall sentence reduced to four years, reduced by the time spent in custody.

R. v. Day, 2022 MBPC 2: Voir dire over issue of constitutional validity of mandatory alcohol screening (MAS) under s. 320.27(2) of the Criminal Code on charge of impaired driving. Accused bears burden of proving on balance of probabilities that the section violates the Charter. Significant narration of the expert opinion evidence given. Discussion of the effectiveness of MAS on deterring drinking and driving. Motion dismissed.

Nathan Baker. Cases Address Question of Time on Suspension Pre-DUI Pleas. The Lawyer’s Daily, 17 March 2022. SCC Leave to Appeal granted in Basque v. R., 2021 NBCA 50.

Cristin Schmitz. SCC Sheds Light on When Judicial Curtailment of Defence’s Cross-Examination Threatens Fair Trial. The Lawyer’s Daily, 25 March 2022. Summary of R. v. Samaniego, 2022 SCC 9.


Family Law

Singh v. Kaur, 2022 MBQB 46: Father’s application for the return of his son from Italy under the Hague Convention. Mother opposes and requests a stay or adjournment pending determination of her claim for refugee protection. Analysis of whether the evidence presented in court fulfills the meaning of Article 13(b) of the Convention (grave risk or harm) as an exception to the mandatory return provisions. Court must determine whether removal of the child was wrongful. Analysis of whether a “Voice of the Child” report should be ordered, considering the child is eight years old. Stay denied, report not ordered, and request for return of child granted.

A.J.K. v. J.P.B., 2022 MBQB 43: Issues of family violence, hearings without notice, sealing orders and initializing. Pattern of family violence has established that the father poses a significant risk to the mother, the children and the community. Mother has sole custody of the children. Mother sought a protection order for herself and then later for herself and the children. In current motion, mother is seeking an order that she not be required to provide notice to the father of a change of residence or relocation for the children. Case considers new provisions in the Divorce Act which mandates new duties for judges to consider family violence and how it impacts the best interest of the children. Discussion of when it is appropriate to initialize a decision. Court pocket is sealed to the father and the public until 30 days from the date of signing this judgment. Mother’s motion is allowed.

Manitoba (Director of Child and Family Services) v. A.K.M.P. and S.L.H., 2022 MBQB 38: Application by Agency for permanent order of guardianship. Respondents (parents) argue that a supervision order is appropriate. Agency bears burden of proof to establish that child was in need of protection at time of apprehension and trial. Child has already exceeded the maximum amount of time allowed under a temporary order. Both parents have made significant progress over the past two years. Thatcher, J. finds the child is currently in need of protection and grants a permanent order. There is a guardianship application brought by a grandmother. Child will not be adopted as long as that application is active.

T.L.T. v. D.A.F. and CFS Western MB v. T.L.E. and D.A.F., 2022 MBQB 28: Custody order for child who has been going back and forth between the mother and the father since 2014. Interim Order pronounced gave parents joint custody, with mother having primary care and control and father having specified periods of care. Issues for determination: What order is in the best interest of the child and pursuant to what legislation; ongoing amount of child support; are there any arrears of child support owing by the father. Menzies, J. had determined previously that the child was in need of protection. Abel, J. concludes that the parties should have joint custody, with the father having primary care and control, and determines level of child support and arrears payable.

Nicholas Bala and Yakin Ebsim. The 2021 Canadian Parenting Reforms: Is Shared Parenting the New Normal? Queen’s Law Research Paper Series. 2022 CanLIIDocs 557.

In March 2021 the first significant changes to the parenting provisions of Canada’s Divorce Act (DA) since its enactment in 1985 came into effect. While the legislative reforms were substantial, in many respects they reinforced judicial trends that were apparent in the caselaw under the previous legislation. Under the reforms, courts have continued to emphasize the need for individualized decision-making and the absence of legislative presumptions about parenting time or decision-making.

Alison Braley-Rattai. The Best Interest of the Child and the Limits of Parental Autonomy to Refuse Vaccination. McGill Journal of Law and Health, 2021 CanLIIDocs 13616.

In this article, the author defends the proposition that given the overwhelming scientific evidence that points to the safety and utility of childhood vaccination, consideration of the child’s best interest undermines the case for parental vaccine refusal, quite apart from the public health dimension of the issue, which she discusses only peripherally.


Labour and Employment Law

University of Manitoba v. University of Manitoba Faculty Association, 2022 CanLII 22900 (MB LA): Labour arbitration decision by William Kaplan. Three issues referred to interest arbitration: general salary increase, recruitment and retention adjustments, return to work disputes. Parties goal is to advance to the 25th percentile in the U15 Group of Canadian Research University Salary Standings. UM currently sits near the bottom. Arbitrator uses the mean rather than the median when considering the General Salary increase.

JSL Labour and Employment Law NetLetter. A weekly current awareness service highlighting new labour and employment decisions from labour boards, arbitrators, human rights tribunals and courts. Available through LexisAdvance Quicklaw. Email us to be added to the distribution list.


Wills, Trusts & Estates

Weiss Estate v. Weiss; Weiss v. Weiss Estate, 2022 MBQB 55: Costs decision after granting of application found at 2022 MBQB 13. One set of parties were ruled against on both applications but wanted party and party costs and disbursements paid from the estate. Position of other (successful) parties request costs in an amount approximating tariff costs, doubled from the point where they made an offer to settle. Public Guardian and Trustee is also entitled to costs, determined on a solicitor and client basis.

Bowes v. Estate of Bowes, 2022 MBQB 47: Application for a determination of ownership of monies on deposit in a joint account where the testator died intestate. Applicant submits that legal and beneficial ownership of the account passed to him through right of survivorship. One sibling argues that the account is held in trust on the presumption of resulting trust. Leading decision on this issue is Pecore v. Pecore, 2007 SCC 17. Applicant has duty to prove transferor’s intention to make a gift. Bock, J. found applicant was successful and the balance in the account will not be included in the testator’s estate.

Tecter v. Reimer Estate, 2022 MBQB 45: Counsel for respondent requested submission respecting costs. Kroft, J. had ordered party and party costs for decision in 2021 MBQB 133. Parties submitted brief written reasons. Kroft, J. concluded party and party costs should be varied but solicitor and client costs were too high. Order for applicants to pay the respondent elevated costs.

Ian Burns. Beneficiaries not liable for debts of a trust or trustee, Alberta Appeal Court rules. The Lawyer’s Daily, 1 April 2022. Case comment on Chevron Canada Resources v. Canada, 2022 ABCA 108.  

Aubrie Girou and Catherine Bunio. B.C. Bill-21 and Electronic Wills: Progressive or Problematic? (2022) 41 Est. Tr. & Pensions J. 152 (Request a copy). A list of all articles from the latest edition of Estates, Trusts and Pensions Journal is available here.

Legislation


Federal

House of Commons

44th Parliament, 1st Session
C-261
An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech)
Progress: First reading completed in the House of Commons
Show details

44th Parliament, 1st Session
C-5
An Act to amend the Criminal Code and the Controlled Drugs and Substances Act
Progress: At second reading in the House of Commons
Show details


Senate

44th Parliament, 1st Session
S-243
An Act to enact the Climate-Aligned Finance Act and to make related amendments to other Acts
Progress: First reading completed in the Senate
Show details

44th Parliament, 1st Session
S-4
An Act to amend the Criminal Code and the Identification of Criminals Act and to make related amendments to other Acts (COVID-19 response and other measures)
Progress: At second reading in the Senate
Show details

Royal Assent Received

44th Parliament, 1st Session
C-12
An Act to amend the Old Age Security Act (Guaranteed Income Supplement)
Show details


Provincial

Government Bills

21Hon. Mr. Piwniuk
Minister of Transportation and Infrastructure
The Highway Traffic Amendment and Manitoba Public Insurance Corporation Amendment ActPDF 
22Hon. Mr. Wharton
Minister of Environment, Climate and Parks
The Environment Amendment Act (Pesticide Restrictions)PDF 
23Hon. Mr. Goertzen
Minister of Justice
The Reducing Red Tape and Improving Services Act, 2022PDF 
24Hon. Mr. Helwer
Minister of Labour, Consumer Protection and Government Services
The Real Property Valuation Board and Related Amendments ActPDF 
25Hon. Mr. Friesen
Minister of Finance
The Interim Appropriation Act, 2022PDFSM 2022, c. 2
26Hon. Mr. Goertzen
Minister of Justice
The Officers of the Assembly Act (Various Acts Amended)PDF 
27Hon. Mr. Goertzen
Minister of Justice
The Highway Traffic Amendment Act (Alternative Measures for Driving Offences)PDF 
28Hon. Mr. Helwer
Minister of Labour, Consumer Protection and Government Services
The Prompt Payment for Construction ActPDF 
29Hon. Mr. Reyes
Minister of Advanced Education, Skills and Immigration
The Mennonite College Federation Amendment ActPDF 
30Hon. Mr. Goertzen
Minister of Justice
The Police Services Amendment and Law Enforcement Review Amendment ActPDF 
31Hon. Mr. Goertzen
Minister of Justice
The Minor Amendments and Corrections Act, 2022PDF 
32Hon. Mr. Goertzen
Minister of Justice
The Victims’ Bill of Rights Amendment ActPDF 
33Hon. Ms. Clarke
Minister of Municipal Relations
The Municipal Assessment Amendment and Municipal Board Amendment ActPDF 
34Hon. Ms. Clarke
Minister of Municipal Relations
The City of Winnipeg Charter Amendment and Planning Amendment ActPDF 
36Hon. Mr. Friesen
Minister of Finance
The Manitoba Hydro Amendment and Public Utilities Board Amendment ActPDF

Private Bills

223Mr. SmookThe Ukrainian Heritage Month ActPDF
226MLA AsagwaraThe Public Schools Amendment Act (Provision of Menstrual Hygiene Products)PDF
227Mr. BrarThe Turban Day ActPDF

Proclamations

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 15The Regional Health Authorities Amendment Act (Health System Governance and Accountability)
Part 1, except section 74 insofar as it enacts sections 79.2 and 79.3
sections 77 to 82 and 84 to 90
subsections 91(2) to (16)
clauses 91(23)(a) and (e)
subsections 91(24) and (25)
sections 93 to 97, 99 to 118, 120 to 126 and section 134 except clauses (a) and (b)
1 April 2022Mar 23 2022Proclamation
SM 2021, c. 6The Legal Profession Amendment Act
whole Act except section 3 and section 6 insofar as it enacts section 25.2
1 April 2022Mar 23 2022
Proclamation
SM 2021, c. 61The Budget Implementation and Tax Statutes Amendment Act, 2021
Part 8
Mar 31 2022Mar 23 2022Proclamation
SM 2021, c. 64The Workers Compensation Amendment Act
whole Act
1 April 2022Mar 23 2022Proclamation
SM 2021, c. 7The Horse Racing Regulatory Modernization Act (Liquor, Gaming and Cannabis Control Act and Pari-Mutuel Levy Act Amended)
whole Act
1 April 2022Mar 23 2022Proclamation

eLex March 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCorporate & Commercial Law 
New Library ResourcesCriminal Law 
Book ReviewsFamily Law 
EventsLabour & Employment Law
 Wills, Trusts & Estates 
  

News


In the News

House Back in Session – March 2nd marked the beginning of the Spring Sitting of the Fourth Session of the 42nd Legislature of Manitoba. MLA’s returned to the chamber for a full house for the first time since the pandemic had required most members to attend virtually for physical distancing regulations.

Updates to LSM Practice Area Fundamentals – Did you know that the Law Society’s Education Centre updated and added new content to their Practice Area Fundamentals documents last September? Alongside the chapter on Criminal Law, the Education Centre added new chapters in: Civil Procedure, Wills and Estates, Corporate Commercial; and Real Estate.

The Practice Area Fundamentals section is available through the Law Society of Manitoba Education Centre.

Save the date! – On October 27, 2022, the Court of Appeal of Manitoba will be hosting a Gala dinner at the RBC Convention Centre to honour the retirement of the Hon. Justice Richard Chartier, Chief Justice of Manitoba. This is sure to be an exceptional evening with special guest speaker, the Right Hon. Richard Wagner, P.C., Chief Justice of Canada. Details to come. Click here to see the announcement.


Court Notices & Practice Directions

February 25, 2022 – Court transition plan arising from evolving public health orders

All COVID-19 Notices and Practice Directions are available here.

Court of Appeal

March 1, 2022 – Resumption of in-person appeal hearings and chambers motions starting Monday, March 14, 2022

Court of Queen’s Bench

March 1, 2022 – Adjustments to current scheduling protocols March 7, 2022, until further notice

March 1, 2022 – Manitoba Court of Queen’s Bench – Masters – Re: Covid-19 update

Provincial Court

March 10, 2022 – Judicial Appointment to the Provincial Court

February 18, 2022 – Resumption of regularly scheduled court sittings and special sittings in the Provincial Court of Manitoba


Discipline Digests

The Law Society of Manitoba v Margaret Carroll, 2022 MBLS 1


New Library Resources

New in Print

Legal Data and Information in Practice provides readers with an understanding of how to facilitate the acquisition, management, and use of legal data in organizations such as libraries, courts, governments, universities, and start-ups. Legal organizations are looking at how to develop data-driven insights for a variety of purposes and it is vital that they have the necessary skills to facilitate this work. This book will assist in this endeavour by providing an international perspective on the issues affecting access to legal data and clearly describing methods of obtaining and evaluating it.

New Online Titles

From HeinOnline

New Journal Titles from HeinOnline

HeinOnline has added new journal titles to their flagship journal database, the Law Journal Library. We’ve evaluated these new titles and are highlighting the ones we think you’ll be most interested in.
New titles include:

  • Amicus Curiae
  • Criminal Justice Studies
  • Refuge: Canada’s Journal on Refugees
  • Research in Law & Economics
  • Tocqueville Review

New eResources

Digital Book Display – Evidence

One of the strengths of the Manitoba Law Library is our range of texts on evidence. We have titles specific to criminal law and family law, digital evidence, expert evidence, and section 24(2) of the Charter.

To help you browse, we’ve compiled some of our most recent print and online titles into this virtual book display.


Book Reviews

Review taken from the Canadian Law Library Review, Vol. 46 Issue 4

The Justice Crisis: The Cost and Value of Accessing Law. Edited by Trevor CW Farrow and Lesley A Jacobs. Vancouver: UBC Press, 2020. 345 p. Includes index. ISBN 9780774863582 (paperback) $39.95.

“What is the current state of civil and family law access to justice in Canada? The authors and editors of The Justice Crisis come together to describe a complex system in need of reform. This compilation of essays is the culminating project of the Canadian Forum on Civil Justice’s SSHRC Community-University Research Alliance (CURA) Cost of Justice Project, which aimed to produce research needed for evidence-based decision-making for civil justice reform in Canada and internationally. The project asked, first, what does it cost to deliver an effective civil justice system? and second, what are the social and economic costs of failing to do so? This volume targets these questions. […] The editors aim not just to describe problems, but also to present solutions. This goal is particularly well met in the case studies and the focus on the role of legal professionals in the system. Because of this, the book successfully strikes a balance between academic inquiry and lived experience. It bridges the gap some academic texts often leave open by raising practical solutions to the issues raised. Its language is generally accessible to a non-legal audience, making this a particularly useful cross-over text for social science readers as well.” – reviewed by Krisandra Irvings


Events

CLEA Annual Law Conference

The Annual Law Conference starts on Tuesday, March 22nd.  The topic this year is Family Law.

The conference webinars are free, but you must register.

There are four sessions planned:

Overview of Family Law with Nina Holatova – Tuesday, March 22nd, 5 pm.  Register here

Family Violence with Stacey Soldier and Wayne Rose – Wednesday, March 23rd, 10 am.  Register here

Parenting with Leah Klassen – Thursday, March 24th, 10 am. Register here

Panel:  Family Law Government Services in Manitoba with Michael Williams, Ingrid Pflug and Leita Kalinowsky – Thursday, March 24, 1:30 pm. Register here

Substantive Law


Administrative Law

Singleton v. Fort Garry/River Heights (Director), 2022 MBCA 24: Question of whether the Social Services Appeal Board erred in law by applying the wrong test in determining the appellant’s eligibility for benefits. Appellant separated from her husband but is not yet divorced. She received benefits under The Manitoba Assistance Act on the basis of being a single person unable to earn sufficient income to meet her needs. Facing homelessness, she moved back in with her husband as a roommate. After an investigation, the Director concluded they are common-law partners and terminated her benefits. Appellant appealed and the Board agreed with the Director but for different reasons. Court determined the wrong test had been applied; correct question to ask is whether the appellant and her husband were living separate and apart in the same home or whether they had reconciled. Court directed that the Director’s order cancelling the appellant’s benefits be rescinded; the Director investigate and prepare a new report; and the Board hold a new hearing.

Christine Hickey. Reasons First: Post-Vavilov Considerations for Tribunal Participation on Judicial Review or Appeal. (2022) 35 Can. J. Admin. L. & Prac. 103 (WLNC – request a copy).

In this paper I will argue that, despite a more flexible approach to tribunal participation, principles enunciated by the Supreme Court of Canada in Vavilov will see a decline in tribunal participation. Where standing/participation is granted, the primary focus will be on the tribunal’s “helpful elucidation of the issues” to ensure a “fully informed adjudication”. (footnotes omitted)


Civil Litigation

Vale Canada Limited v. Urbanmine Inc., 2022 MBCA 18:

[1] This appeal highlights the importance of not conflating the law of contributory negligence with the law of mitigation when considering a claim for damages arising from conversion. 

Plaintiff owns a nickel mine; Schwartz defendants stole nickel and sold it to Urbanmine, which then resold it to a third party at a profit. Urbanmine conceded that the purchase and resale constituted conversion (a strict liability tort) but argued that plaintiff should have mitigated its losses by having better security. Motion judge determined that is not an available defence. Chartier, C.J.M. discusses difference between contributory negligence and mitigation. Appeal dismissed.

Group Westco Inc. v. Manitoba Chicken Producers et al, 2022 MBCA 16: Applicant’s appeal of motion judge’s discretionary decision to dismiss application for judicial review on the basis of prematurity. Underlying issue is the Manitoba Chicken Producers’ adoption of particular production quotas. Appeal dismissed.

Brandon Condominium Corporation No. 68 v. TJR Investment Holdings Ltd., 2022 MBCA 13: Appeal as to rights and obligations of residential owners of condominium units in a mixed-use condominium complex. Key issue is whether The Condominium Act allows for an unequal allocation of expenses for common elements and reserve funds. Analysis of s.36(1) of the Act (reserve fund). Discussion of applicability of limitation periods for Condominium Act cases. Divided success on appeal.

Berscheid v. Government of Manitoba, 2022 MBCA 12: Appeal of summary dismissal of part of claim for damages from flooding on forage land leased from the defendant. Plaintiff also appeals orders made during case management conferences. Defendants rely on an exclusion clause in the forage lease to release them from liability from flood damage. Discussion of whether rules from 1989 were in effect or later guidelines. Appeal allowed for the summary judgment decision dismissing part of his claim and it will proceed to trial. Remainder of appeal dismissed.

Combs et al v. Griffith et al, 2022 MBQB 40: Dispute over ownership of two burial plots in a cemetery. The RM sold the plots to the plaintiffs’ mother in 2006, and then mistakenly resold them to the defendants in 2021. One of the defendants was buried in one of the plots. Plaintiffs want his remains to be disinterred. Before applying to Min. of Health for an order for disinterment, plaintiffs seek an order declaring that they are the lawful owners of the plots. Defendants’ argue that court has no jurisdiction to make such a declaration. Analysis of The Cemeteries Act and whether purchasers own a plot or if it is an easement. Declaration granted.

SGI v. Marostica, 2022 MBQB 35: Application for judicial review of an umpire’s decision under The Insurance Act, s. 121. This section sets out a mechanism for resolution of disputes concerning insurance contracts. Discussion of the appropriate level of procedural fairness. Significant deference owed to the decision of the umpire. Both parties had input in choosing the appraisers, the expertise of those individuals and the umpire. Application dismissed.

Winnipeg Condominium Corporation No. 881 v. T & T et al., 2022 MBQB 33: Application pursuant to Part II of The Limitation of Actions Act for leave to commence an action against the named respondents. Issues are whether the applicant filed the application within 12 months of knowing all material facts, and whether they have established that they have a prima facie case. Criteria under s.14 set out in Cahill v. Pasieczka, 2014 MBQB 217., paras. 26 and 27. Leave allowed. 

College of Registered Nurses v. Shannon Hancock, 2022 MBQB 26: Request for order that the respondent be declared a vexatious litigant, as well as other orders. Consideration of s.73 of The Regulated Health Professionals Act. Such an order is a serious and exceptional remedy. Review of a vexatious litigant application is determined on an objective standard. Significant discussion of the history of legal actions of the respondent over several years. Court declares respondent a vexatious litigant and discontinues several previous actions.

Fletcher v. Bradbury (MHRC), 2022 MBQB 25: Application under The Freedom of Information and Protection of Privacy Act, s. 67 and Queen’s Bench Rule 14, appeal for access to records redacted in initial request. Restatement of touchstones underpinning requests of the government by a citizen or organization. Analysis of test as set out in Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3. More information required; request for further submissions.

Gateway Bible Baptist Church et al. v. Manitoba et al., 2022 MBQB 22: Determination of costs in two unsuccessful challenges respecting the constitutionality of various Emergency Public Health Orders. “Ordinary rule” suggests that costs are awarded to the successful party, however, given the public interest nature of the issues and this was an issue of “first impression”, no costs are ordered. Joyal, C.J.Q.B. notes that this decision is not a precedent for future litigation.

7602678 Manitoba Ltd. v. 6399500 Manitoba Ltd., 2022 MBQB 16: Dispute over contract and failed real estate transaction. Motion seeking various orders for relief. Analysis of whether Mr. Jhanji is properly a party to the pending action, which will determine if he can represent himself, given he has been suspended from practising law. Defendants and Intervenor Law Society agree if he is a party, he can self-represent. Master Patterson finds that Mr. Jhanji is not properly named as a party to the pending action, and may not represent the corporation in this action.

Fatoki et al. v. Hilton Homes (2007) Ltd., 2022 MBQB 14: Application for an order directing respondents to comply with an order issued by this court relating to the impact fee by-law passed by City of Winnipeg council. Order required City to refund the fees collected plus interest, to the person who made the payment. Developers who collected the fee are responsible to refund the fee to the purchaser. Order was not made until after these applicants had taken possession of their homes. Respondent claims Schedule on Purchase and Sale Agreement allows it to keep a portion or all of the fee refund. Analysis of principles of contract interpretation to be applied, as well as objective intentions of the parties. Applicants were largely successful; costs awarded on a Class 2 basis.

Christopher Guly. Ontario Appellate Court Greenlights Damages Hearing in CIBC Class Action. The Lawyer’s Daily, 17 February 2022. Case comment on a 15 year class action, Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115.

Jeffrey Lem. The Latest Word on Easement Obstruction: The de Jocas Trilogy. (2021) 23 R.P.R. (6th) 56 (WLNC – request a copy).

… The de Jocas Trilogy affirms the general rule that “substantial interference” remains the operative substantive test, but provides a treasure trove of insights on the topic of easement blockage or interference and easement dispute litigation generally. Although the de Jocas Trilogy involved residential cottage properties, blockage and interference is a common dispute in all easements, both residential and commercial. Furthermore, while the de Jocas Trilogy involved total permanent physical blockage of a right-of-way, the principles therein apply equally well to partial blockages like building encroachments, and, perhaps more commonly, to temporary blockages like parking within access rights-of-way.


Corporate and Commercial Law

Maes et al. v. Western Warner Oil Ltd. et al., 2022 MBQB 7: Action over investment in a small Alberta oil and gas company. Plaintiffs allege they were induced to make their investments on the basis of negligent or fraudulent misrepresentations, or, alternatively, that the defendants have breached the agreements. Or, they are the victims of oppressive conduct. Defendants deny any wrongdoing and further submit plaintiffs’ claims are time-barred. Analysis details the facts in dispute and analysis. Bock, J. finds for the defendants and dismisses all of the plaintiffs’ claims.

Criminal Law

R. v. Ste-Marie, 2022 SCC 3: Crown appeals from a decision quashing four convictions and entering a stay of proceedings because of a violation of the right to be tried within a reasonable length of time. Respondents were charged with laundering proceeds of crime in 2009, and convicted in 2016. Trial judge found a 77-month delay between charges and the end of the trial, but declined to enter a stay of proceedings on the grounds that the accused had not been prejudiced by the delay. CA overturned trial judge’s decision.

[7] With respect, the Court of Appeal erred in refusing to re‑examine the unreasonableness of the delays on the ground that the record before it was incomplete. On appeal, the Crown filed a statement of admissions by the parties — filed by the parties at trial under s. 655 of the Criminal Code, R.S.C. 1985, c. C‑46 — that contained a detailed chronology of events, the content of which was not analyzed at all by the Court of Appeal. In our opinion, the evidence in the record allowed the appeal judges to carry out that analysis. It should be noted that a statement of admissions by the parties was not part of the appeal records in the cases on which the Court of Appeal relied, at para. 14 of its reasons, to justify its refusal to re‑examine the delays in this case. Although a court is not bound by admissions of law, a joint statement may be useful on appeal and may help reduce the delays leading to the infringement alleged by an accused (see, e.g., R. v. Bryant2021 QCCA 1807, at para. 3).

Appeal allowed, stay of proceedings set aside and case remanded to a new panel of the Court of Appeal for consideration of the other grounds of appeal that remain outstanding.

R. v. Boulanger, 2022 SCC 2: Right to be tried in a reasonable length of time. Crown appeals from a majority decision of QCCA finding a net delay of 35 months and 2 days, exceeding the ceiling set in R. v. Jordan. Issue is whether two particular delays must be attributed to the defence because of its conduct.

[4] It is true that the characterization of delay is a question of law and that the trial judge was not bound by the respondent’s admission in this regard. However, the trial judge did not provide any explanation, even an implicit one, to clarify why he was rejecting the admission for this period (reasons of Chamberland J.A., at para. 173). Since he chose to go against the parties’ suggestion, and in the absence of submissions by them on this specific point, it was especially important that the trial judge provide reasons explaining what he had decided and why (see R. v. G.F., 2021 SCC 20, at paras. 71‑74). With respect, he did not do so.

Court re-examined dates available for trial and reasons for delay, and recalculated total time. It still exceeded the Jordan framework. Appeal dismissed.

R. v. Sutherland, 2022 MBCA 23: Accused appeals conviction by a jury of second degree murder. First ground of appeal is curative instruction given to the jury. Second ground is admissibility of lay opinion evidence. Appellate court must review jury instructions on a standard of adequacy, not perfection. Significant analysis of whether the trial judge erred by allowing lay opinion evidence. Appeal dismissed on both grounds.

R. v. Hjorleifson, 2022 MBCA 22: Question of whether accused received ineffective assistance at trial. Analysis of test for ineffective assistance. Appeal dismissed.

R. v. Glennie, 2022 MBCA 21: Application for leave to appeal sentence relating to drug trafficking and weapons offences. At sentencing hearing there were a large number of charges on varying dates leading to confusion. Accused appeals arguing that sentencing judge erred in assessment of concurrent and consecutive sentences, finding that a firearm was a restricted weapon, and imposing an unfit sentence. Sentencing judge is entitled to significant deference. Leave to appeal granted as sentencing judge should have apportioned the adjustment for totality, but appeal dismissed.

R. v. Thomas, 2022 MBCA 19: Appeal of conviction for second degree murder on the basis that guilty plea was not voluntary. Accused applies to tender fresh evidence. Refresher on the test for determining a valid guilty plea. Fresh evidence admitted, but appeal dismissed.

R. v. Markwick, 2022 MBCA 20: Appeal of conviction for assault causing bodily harm and forcible confinement on basis that trial judge unevenly scrutinized evidence. Credibility was key issue at trial. Appeal dismissed.

R. v. Debler, 2022 MBCA 15: Accused appeals conviction for sexual exploitation and interefernce under ss. 153 and 151 of the Criminal Code, and seeks leave to appeal his sentence. He seeks to replace the conviction with one under s.152. Appeal granted, leave to appeal sentence denied.

R. v. T.P.R., 2022 MBCA 14: Appeal of conviction for sexual interference, arguing that the judge erred by refusing to order production of the victim’s therapy records and admitting specific evidence. Discussion of the statutory relevance threshold set by Parliament with regards to private records. Appeal dismissed.

R. v. Watt, 2022 MBQB 21: Issue of whether minimum ten year period of parole ineligibility should be raised where the accused pled guilty to a charge of second degree murder. Crown asked for 17 years; defence argued for 10. Discussion of aggravating and mitigating circumstances in determining an appropriate sentence. Proper period of parole ineligibility is 12 years.

R. v. Fraser, 2022 MBQB 12: Application for certiorari by Crown to quash a ruling on the basis the provincial judge lacked jurisdiction to deem a particular warrant executed.

R. v. Mediascene Inc., 2022 MBPC 11: Dispute over speeding offence issued by photoradar. Defendant pleads lack of signage on this section of roadway was insufficient. Cites The Highway Traffic Act and regulations as authority. Crown proceeded by way of certificate evidence. Defendant did not call evidence. JJP found there was no evidentiary foundation put before the Court to displace the Crown’s case. Conviction entered.

Erika Chamberlin. Francis v. Ontario: Can the Crown Restore Its Own Immunity? 2021 99-3 CBA 645. Comment on Francis v. Ontario, 2021 ONCA 197.

Francis involved a class proceeding related to practices of administrative segregation in Ontario’s correctional facilities. The class was comprised of two groups that were allegedly harmed by these practices: inmates suffering from serious mental illness and those who were placed in administrative segregation for 15 or more consecutive days (referred to in the decision as “Prolonged Inmates”). They brought claims in negligence and under sections 7 and 12 of the Charter of Rights and Freedoms. The Court of Appeal upheld the decision of the motion judge, Justice Perell, to award aggregate Charter damages of $30 million, and this portion of the judgment is not discussed further here. I will limit my discussion to the negligence claim, which was based on alleged systemic negligence in the practice of administrative segregation, including over-reliance on administrative segregation for administrative purposes, failing to investigate or report harm, failing to adequately supervise employees, and failing to remove class members from segregation in a timely manner. (p. 646).

Michael Plaxton. R. v. Pruden: A History of Force, (2020) 76 C.R. (7th) 196 (WLNC – request a copy). Comment on the meaning and significance of “force” in the offence of assault.

In October 2021, Judge Lamoureux of the Alberta Provincial Court convicted Kyle Pruden of two counts of assault. The charges stem from a confrontation that took place in November 2020, during the Covid-19 pandemic, and at a time when there was a mask mandate in Alberta. The first count is unremarkable: Mr. Pruden refused to leave, after being told to do so. The second count is more interesting, at least legally. As the argument with a bar employee progressed, Mr. Pruden pulled down his mask and intentionally — he testified “sarcastically” — coughed in close proximity to her. Judge Lamoureux found that this satisfied the elements of assault per s. 265(1)(a) of the Criminal Code. For my purposes, the striking aspect of her analysis is the conclusion that the defendant applied “force” to the complainant by expelling “lung air molecules”.  (footnotes omitted)


Family Law

Sharma v. Sharma, 2022 MBQB 27: Consideration of the issues of entitlement and quantum of child support for an adult child. Both parties advance claims for relief retroactive to 2017. Leading case is Rebenchuk v. Rebenchuk, 2007 MBCA 22. Competing motions to vary a Final Order pronounced on May 15, 2006, varied on October 6, 2016 concerning entitlement, quantum of period child support, and contribution to an adult child’s s.7 expense for education. Analysis of whether the adult son is a “child of the marriage” and the role of an “intermittent student”. Dependency, rather than age, is an important factor (para 86). Order is varied; counsel are requested to prepare and file a statement specifying the balance owing or the amount of overpayment.  

Craig v. Craig, 2022 MBQB 19: Issue of whether costs should be ordered on this motion or if it should be adjourned and determined at trial, and if petitioner is entitled to double party and party costs pursuant to Rule 49. Doyle, J. decided that there is no benefit to either party to delay the awarding of costs; petitioner is awarded costs.

Porath v. Wardner, 2022 MBQB 17: Issue of costs to be awarded on an interim motion on a guardianship application. Discussion of legislation and rules governing costs awards, including Rule 49. Father is requesting double costs for a portion of his fees; Guardianship applicant (aunt) argues that father’s proposal could not be construed as an offer to settle. Costs awarded in an amount higher than the Tariff A amount.

Rachel Garrett. The Children Parliament Left Behind: Examining the Inequity of Funding in an Act Respecting First Nations, Inuit and Métis children, Youth and Families. (2021) 34-1 Canadian Journal of Family Law 45.

New, ground-breaking Indigenous child welfare legislation passed through the House of Commons and the Senate in 2019 and came into force in January of 2020. Formerly Bill C-92, now An Act respecting First Nations, Inuit and Métis children, youth and families (the Act), this Act contains a number of innovative provisions aimed at affirming the jurisdiction of Indigenous Peoples and establishing national standards for services provided to Indigenous families. While the Act has been critiqued on a number of grounds for not going far enough, it undoubtedly pushes the law over a few lines that, up to this point, had not yet been crossed. (p. 47)

Scott Booth. Tax Efficient Solutions to Division of Corporate Property: Can The Court Order a Corporate Reorganization? (2021) 40 C.F.L.Q. 49 (WLNC – request a copy).

This paper discusses current jurisprudence dealing with whether the Supreme Court of British Columbia, pursuant to s. 97 of the Family Law Act, SBC 2011, chapter 25 (the “FLA“), has jurisdiction to order a divisive reorganization of corporate assets, such as a butterfly transaction. 


Labour and Employment Law

3559972 Manitoba Ltd. et al. v. Pethrick et al., 2022 MBQB 39: Issue over validity of non-competition and non-solicitation clauses in a professional services contract. Agreement calls for a five year ban from working at any entity in Manitoba whose business intersects with the specialty services at Nova, and forever prohibits the defendant from soliciting any of Nova’s clients. Analysis of the law of these clauses in contracts; Kroft, J. notes that these clauses are considered restraints of trade. The clauses are found to be void and unenforceable.


Wills, Trusts & Estates

Dalrymple et al. v. DeMeyer Estate; Dusik et al. v. DeMeyer Estate, 2022 MBQB 31: Dispute over administration of estate where testator passed away in 2013. Executor (son of the deceased) lived in her property rent free until it was sold in 2020. Demand for passing of accounts as well as occupation rent. Perlmutter, A.C.J.Q.B. issues order to a master for an accounting, including occupation rent less a set-off for reasonable expenses.

Legislation


Federal

House of Commons

44th Parliament, 1st Session
C-257
An Act to amend the Canadian Human Rights Act (protecting against discrimination based on political belief)
Progress: At first reading in the House of Commons
Show details

44th Parliament, 1st Session
C-8
An Act to implement certain provisions of the economic and fiscal update tabled in Parliament on December 14, 2021 and other measures
Progress: At report stage in House of Commons
Show details


Senate

44th Parliament, 1st Session
S-239
An Act to amend the Criminal Code (criminal interest rate)
Progress: At second reading in the Senate
Show details

44th Parliament, 1st Session
S-238
An Act to amend the Criminal Code and the Canadian Victims Bill of Rights (information about the victim)
Progress: At second reading in the Senate
Show details

44th Parliament, 1st Session
S-217
An Act respecting the repurposing of certain seized, frozen or sequestrated assets
Progress: At consideration in committee in the Senate
Show details



Provincial

Government Bills

10Hon. Ms. Gordon
Minister of Health
An Act respecting Amendments to The Health Services Insurance Act, The Pharmaceutical Act and Various Corporate StatutesPDF
11Hon. Mr. Goertzen
Minister of Justice
The Elections Amendment ActPDF
12Hon. Mr. Johnson
Minister of Agriculture
The Peak of the Market Reorganization ActPDF
13Hon. Ms. Squires
Minister of Families
The Social Services Appeal Board Amendment ActPDF
15Hon. Mr. Piwniuk
Minister of Transportation and Infrastructure
The Drivers and Vehicles Amendment and Highway Traffic Amendment ActPDF
16Hon. Mr. Friesen
Minister of Finance
The Financial Administration Amendment ActPDF
17Hon. Mr. Goertzen
Minister of Justice
The Family Law Act, The Family Support Enforcement Act and The Inter-jurisdictional Support Orders Amendment ActPDF
20Hon. Mr. Friesen
Minister of Finance
The Supplementary Appropriation Act, 2021-2022PDF

Private Bills

217Mrs. Smith
The Fatality Inquiries Amendment Act (Overdose Death Reporting)
PDF
222MLA MarcelinoThe Pay Transparency ActPDF

Proclamations

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 11The Public Service Act
whole Act
26 Feb 202215 Feb 2022Proclamation
SM 2021, c. 30The Reducing Red Tape and Improving Services Act, 2020
sections 6 to 10
28 Feb 202215 Feb 2022Proclamation

eLex February 2022

Table of Contents

NewsSubstantive LawLegislation
In the NewsAdministrative LawFederal
Court Notices &
Practice Directions
Civil LitigationProvincial
Discipline DigestsCriminal Law 
New Library ResourcesFamily Law 
 Book ReviewsWills, Trusts & Estates 

News


In the News

Manitoba Law Society Benchers approve pilot program for part-time practising fees

The Library will be reopening to visitors on February 16, 2020.

Notices


Court Notices & Practice Directions

Provincial Court

Notice – COVID-19 Suspension and Restriction of Hearings

Queen’s Bench

Notice – COVID-19 Update

All COVID-19 Notices and Practice Directions are available here.

Other Notices

Provincial Court

Notice – Additional Adult Trial Dates in Winnipeg added to the Court’s Website (February 2, 2022)
Current advertisement – Judicial Justice of the Peace (Brandon and Thompson) (February 3, 2022)


Discipline Digests

Notice of Withdrawal – Thomas (Tom) Turner

New Library Resources

Legal Data and Information in Practice provides readers with an understanding of how to facilitate the acquisition, management, and use of legal data in organizations such as libraries, courts, governments, universities, and start-ups. Legal organizations are looking at how to develop data-driven insights for a variety of purposes and it is vital that they have the necessary skills to facilitate this work. This book will assist in this endeavour by providing an international perspective on the issues affecting access to legal data and clearly describing methods of obtaining and evaluating it.

New eResources

New from CanLII: AI generated subject classification for Ontario case law

Ontario court decisions on CanLII now display artificial intelligence generated classification. The AI feature uses machine learning technology to automatically generate practice area labels. The labels appear in grey at the bottom of a search result, underneath the italicized subject keywords. Read the full post here

Rangefindr.ca
Free Guide from Rangefindr: Sentencing Guide for Transgender Offenders

Legal research tool Rangefindr has recently released a free sentencing guide for transgender offenders. The guide summarizes material on the sentencing of transgender and gender nonconforming offenders.
Members of the Law Society of Manitoba have access to Rangefindr’s criminal sentencing resources through the Member’s Portal. Read the full post here

I Love to Read Month

February is I Love to Read Month! We are recommending the following titles all about legal history in Manitoba.

Judicious Restraint: The Life and Law of Justice Marshall E. Rothstein, Lisa M. Kelly and Ivo Entchev

A biography of Manitoba-born, former Justice of the Supreme Court of Canada, Justice Marshall E. Rothstein.

Paths to the Bench: The Judicial Appointment Process in Manitoba, 1870-1950, Dale Brawn

Uncovers the political nature of the judicial appointment processes and the history of the legal profession in Manitoba from 1870-1950.

A Partnership of Equals: the struggle for reform of family law in manitoba, berenice b. sisler

Traces the struggle to reform Manitoba’s family law during the years 1975-78, to achieve equality for married women.

The queen v. louis riel, introduction by desmond morton

Following Morton’s introduction, this work includes text from the Reports of Cases 1885 and the Law Reports 1885 with text of the trial.


Contact the Great Library to arrange pickup of any of our titles for loan.

Book Reviews

Review taken from the Canadian Law Library Review, Vol. 46 Issue 3

25 Rules for Success… and 10 Tips to Help You Enjoy the Practice of Law. By Jacqueline L King. Toronto:Thomson Reuters, 2020. 137p. Includes appendices of supplemental resources. ISBN 978-0-7798-9714-8 (softbound) $54.00

“Jacqueline L King, a partner at Shibley Righton LLP, is the author of 25 Rules for Success… and 10 Tips to Help you Enjoy the Practice of Law. She is a respected litigation lawyer, a sought-after continuing legal education speaker, an astute collaborator in any committees she sits on, and oh yeah, a mother who also gets involved in her children’s lives. In this book, the author explains how she stays on top of commitments while giving her best in all that she sets her mind to.

As the Honourable Ian Binnie writes in the Foreword, this book applies to both early and mid-career legal practitioners who seek to improve their practice of law by way of alleviating stress and anxiety.” – reviewed by Vicki J Leung

Events

The series continues the forum’s core focus on how the intersection of business and law is evolving.

The webinars are accredited for professionalism credits from the LSO and CPD credits from the LSBC. They are free to view and simply require registration to attend.

Webinar Topics, Dates + Registration Links:

***note all Webinars run from 12pm-1pm Eastern Time***

Full information about the series and registration links on: www.canlif.net/webinars.

Substantive Law


Administrative Law

Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19: Appeal of decision by Pest management Regulatory Agency (PMRA) re continued registration of glyphosate products for use in Canada. Safe Food Matters applied to Federal Court for judicial review (dismissed). FCA allowed appeal and remitted decision back to PMRA for reconsideration. Judicial review is in accordance with Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Question is whether the decision is reasonable.

Dhalla v. College of Physicians and Surgeons of Manitoba, 2022 MBCA 7: Appeal of penalty imposed after finding of professional misconduct, and costs decision. Appellant was reprimanded and his licence to practice medicine was suspended for two months. He was ordered to pay costs of $85,000 as a contribution to the costs of the investigation and hearing. Analysis of the civil standards of review and penalty standards of review. Appeal dismissed.

Mohammadi v. Compensation Appeal Board, 2022 MBQB 20: Application for reconsideration of decision advising applicant she was not eligible for wage loss benefits under the Compensation Appeal Board. Applicant had been receiving a non-earner income replacement indemnity due to a car accident prior to being a victim of crime. Grounds of appeal are on a question of law or jurisdiction. Kroft, J. finds it is a question of law and thus the standard of review is correctness. Central question is whether applicant was employed or self-employed at the time of the incident. Appeal dismissed.

Mark Mancini. The Sunday Evening Administrative Review, Issue 28. Case comment on Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19.


Civil Litigation

WRE Development Ltd. v. Lafarge Canada Inc., 2022 MBCA 11: Plaintiff’s appeal of dismissal for long delay under Queen’s Bench Rule 24.02(1). Motion judge concluded that there was no significant advance in the action for a period in excess of three years. Action involves the construction of an apartment building built between 2010 and 2012. Plaintiff sought damages re product supplied and installed by the defendant. Explanation of the difference between the old and new rule 24. Analysis of the test for whether an action has been significantly advanced. Appeal dismissed.

Frenchie’s Farm and Ranch Ltd v. Peace Hills Insurance Company, 2022 MBCA 10: Plaintiff appeals dismissal of claim for payment under an insurance policy relating to a fire loss. Plaintiff argues error by the trial judge. Court of Appeal determined that the trial judge correctly noted that a false statement will violate statutory condition 7. Appeal dismissed.

Chartier v. Bibeau, 2022 MBCA 5: Appeal of civil jury award of damages in the amount of $500,000 for a defamation suit. Award reduced to $50,000 for general and aggravated damages.

Bibeau et al v. Chartier et al, 2022 MBCA 2: Appeal from dispute regarding the terms of an oral contract. Parties disagree about the extent of the interest purchased by the plaintiff. Statement of claim included allegations of breach of contract and breach of fiduciary duty. Standard of review is discretionary, reviewed on a deferential standard. Plaintiffs’ appeals are dismissed; defendants’ cross appeals are allowed in part.

85 Academy Road Development Corporation et al. v. Rona Inc. et al., 2022 MBQB 15: Request for reconsideration of decision to refuse to direct payment to Rona of trust funds. Basis for reconsideration request is Toromont CAT v. Erickson Construction (1975) Ltd. et al, 2021 MBQB 75, not referenced previously by either party in the original submissions. Reasons of November 16, 2021 are revised.

Andrews v. Grammond, 2022 MBQB 11: Claim for professional negligence for advice given before lawyer became a sitting judge, brought under the Small Claims Act. Issue is whether it is an excluded proceeding, as defined under s. 3(4). Joyal, C.J.Q.B. finds that it is and claimant will have to find another forum for relief. Significant analysis and discussion of this section.

Ostrowski v. Weinstein et al, 2022 MBQB 3 : Motion for summary judgment to dismiss plaintiff’s wrongful conviction claim due to it not being filed within the limitation period. Action had to have been initiated within two years. Contentious issue is when the two year limitation period started to run. Extensive analysis of when the limitation period started. Greenberg, J. determined that the limitation period expired in May 2006. Claim dismissed.

R.S. Distribution Services Ltd. v. MTS Inc. et al., 2022 MBQB 2: Action for breach of contract. Issue over whether there was an agreement to deliver services with a minimum amount over the term. Defendant felt that the minimum guaranteed amount of the previous contract had been too high. Plaintiff used an internal memo that had been attached to the hard copy of the contract constituted the new agreed minimum amount. Toews, J. concluded that the memo was not part of the contract and dismissed the action.

Wilson et al v. Kornelsen, 2022 MBQB 1: Issue of prescriptive rights over a certain property in the Town of Stonewall. Test for a party asserting a dominant tenement and easement is set out in Limack et al v. Kroeker et al, 2020 MBCA 98 at para 16. As well, the period of usage must be over 20 years. Most of the evidence is in the form of hearsay. Toews, J. sets out a detailed order of which rights belong to which property.

Knight v. Daraden Investments Ltd. et al., 2021 MBQB 279: Appeal from master’s decision dismissing plaintiff’s action under Rule 24.02(1), long delay. Action over defendants’ failure to take reasonable care resulting in physical injury to the plaintiff through a slip and fall. Parties disagree over whether there was an agreement to delay proceedings. Bock, J. agrees that there has been an inordinate delay within the meaning of Rules 24.01(2) and (3) but blame is shared by both parties and thus excusable.

Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.), 2021 MBQB 276: Order and reasons for approval of class counsel’s legal fees. Fees for prosecuting the actions have been negotiated separately from the settlement agreement. The Class is not responsible for paying legal fees. Analysis of whether the fees suggested ($53 million plus $5 million for future work) are fair and reasonable and in the best interests of the class. Fees approved.

Tataskweyak Cree Nation et al. v. Canada (A.G.);, Curve Lake First Nation et al. v. Canada (A.G.), 2021 MBQB 275: Motion to approve the First Nations Drinking Water Settlement Agreement. Both Federal Court and the Manitoba Court of Queen’s Bench have jurisdiction. Sets out the key provisions of the settlement agreement: retrospective and prospective compensation; class and class period; and implementing the “Long-Term Drinking Water Advisory Action Plan”. Class counsel fees will be subject to a different order and reasons.  

Terry Davidson. Defamation awards must be proportionate to conduct, says lawyer of dispute between millionaires, The Lawyer’s Daily, February 3, 2022. Case comment on Bibeau et al v. Chartier et al., 2022 MBCA 5.

Bryan Schwartz, Monica Adeler, Mike Myschyshyn and Robert Walichnowski. Asper Review of International Business and Trade Law, Vol. 21 Special Edition: Cybersecurity and Law Firms. 2021 CanLIIDocs 988
Guide to cybersecurity for lawyers from a Canadian perspective.


Criminal Law

R. v. Ali, 2022 SCC 1: Issue of legality of a strip search of the accused resulting in the seizure of cocaine. Moldaver, Brown, Rowe and Jamal JJ; Concurrence: Côté J. Appeal dismissed.

[2] A majority of this Court agrees with the conclusion of the majority of the Court of Appeal and would dismiss the appeal. Where a strip search is conducted as an incident to a person’s lawful arrest, there must be reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest (see Golden, at para. 99). These grounds are met for the strip search where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest (see Golden, at paras. 94 and 111).

R. v. Bourassa, 2022 MBCA 9: Request for leave to appeal a seven year sentence for four weapons-related offences. Argues that judge did not adequately apply the principle of totality. Standard of review is highly deferential. Leave to appeal granted but appeal dismissed.

R. v. Morrissette, 2022 MBCA 8: Appeal of convictions for several offences involving firearms. Appellant also seeks leave to appeal the custodial portion of his sentence. He argues there was no direct evidence of possession and that the circumstantial evidence was insufficient to convict him. Conviction appeal dismissed and application for leave to appeal the sentence denied.

R. v. Derksen, 2022 MBCA 6: Appeal of sentence of nine and a half years’ incarceration for three firearms charges. Leave to appeal was denied, however parties asked that appeal be granted to clarify one aspect of the individual sentences related to the totality principle. Clarification added; appeal dismissed.

R. v. Bear, 2022 MBCA 4: Appeal of Crown’s application for designation of the accused as a dangerous offender. Accused’s principal submission is that the sentencing judge erred at the designation stage. Leave to appeal granted; appeal dismissed.

R. v. McKenzie, 2022 MBCA 3: Appeal of case re common law police powers; whether the law relating to ss. 8, 9 and 24(2) of the Charter were applied correctly. Analysis of the common law power of investigative detentions. Appeal dismissed.

R. v. Hurdon, 2022 MBPC 7: Trial for possession of fentanyl for the purpose of trafficking, simple possession of methamphetamine, and possession of property under $5,000 from the sale of drugs. Expert opinion evidence on what quantity of drugs is likely to be for personal use versus trafficking. Accused testified but was not a credible witness. Accused convicted.

R. v. Maytwayashing, 2022 MBPC 6: Sentencing decision after accused was found guilty after trial of robbing a taxi driver, driving while impaired and refusing to provide a breath sample. Gladue factors considered. Discussion of the fundamental principles of sentencing. Relevant sentencing objectives in this case are denunciation, general deterrence and rehabilitation. Sentence for robbery is 18 months of custody; concurrent sentence of seven days for the other offences.

R. v. Watson-Langley, 2022 MBPC 5: Decision on voir dire re s.9 violation. Accused seeks exclusion of all evidence obtained by police, in particular the seizure of a set of car keys which included key fobs for two apartment blocks. Harvie, P.J. admits the evidence.

R. v. Millan, 2022 MBPC 1: Sentencing decision for the offences of making and possessing child pornography, and breaching a condition of his release order. Overall issue is to assess the seriousness of the offences committed and the accused`s degree of moral culpability. Accused has prior convictions for sexual offences. Sentencing objectives in this case include denunciation and deterrence, as well as the objective of separating the offender from society. Total sentence of three and a half years, less time served in remand custody credited at 1.5 days, followed by three years of supervised probation.

R. v. Lohr-Mansbridge, 2021 MBPC 62: Accused charged with hunting at night without a permit, and hunting on private land without permission of the owner. Conservation officers were on duty patrolling an area where people were known to hunt at night. Accused were found in a vehicle at midnight, slowly driving in the area and arrested for hunting at night. Although Carlson, P.J. found that they were likely guilty, it didn`t reach the criminal standard of beyond a reasonable doubt. Both accused were acquitted.

R. v. Campbell, 2021 MBPC 59: Sentencing decision for accused found guilty of several violent offences. Crown and defence make the same recommendations for the most serious matters but different on the lesser offences. Gladue factors are also considered. Discussion of the approach required when sentencing multiple offences at the same time. Totality of sentences is nine years imprisonment.

Tim Quigley. “Sadly, No RIP for Starting-Point Sentences”, (2022) 75 C.R. (7th) 306. (WLNC – request a copy). Analysis of R. v. Parranto, 2021 SCC 46 in an analysis of starting points as a form of appellate guidance to sentencing judges.

Nicole M. Myers and David Ireland. “Unpacking Manitoba Bail Practices: Systemic Discrimination, Conditions of Release and the Potential to Reduce the Remand Population.” (2021) 69 C.L.Q. 26. (WLNC – request a copy)


Family Law

Pedersen v. Pedersen, 2022 MBQB 6: Master’s report on family property accounting. Both parties operated under a limited retainer. Conflicts over the value of a farm corporation. Both parties retained an expert to value the corporation. Master also directed to determine the discount rate to be applied as a result of potential tax liability associated with the husband’s real property, RRSPs and his interest in the corporation. Petitioner is the successful party.

Gadea v. Rath, 2022 MBQB 5: Mother requests return of the parties’ child to Costa Rica under the “Hague Convention”. Father denies that the removal or retention of the child was wrongful. Mother submits that the wrongful removal took place in either April 2020 or September 2021. Date of removal is vital to determining which section of Article 12 applies. Jurisdiction for custody and access issues is based on habitual residence. Hatch, A.C.J. determines the child had been habitually resident in Manitoba for either date. Application dismissed.

Terry Davidson. Court Ruling an Example of Clash between Bankruptcy Law, Family Law; Scholar. The Lawyers Daily, 26 Jan 2022. Case comment on Woods v. Ferguson, 2022 NSCA 1. Parties divorced in 2014. Husband owed money to CRA who had put a lien on some property owned by both husband and wife.

Rollie Thompson, Q.C. Retroactive Support after Colucci, (2021) 40 C.F.L.Q. 61 (WLNC – request a copy). Case comment on Colucci v. Colucci, 2021 SCC 24, resolving the confusion about how to apply D.B.S. to retroactive variations downward.


Wills, Trusts & Estates

Weiss Estate v. Weiss; Weiss v. Weiss Estate, 2022 MBQB 13: Combined applications relating to the will of the testator. First application seeks to rectify will to correct errors; cross application states that if rectification is allowed, the will must be declared invalid. Issue is over the residue clause. Kroft, J. grants the application to rectify the will.

Estate of George Czyzewski, 2022 MBQB 8: Application by executor to pass accounts. Testator died over 11 years ago. Probate was granted in 2011. Total value of estate at time of death was close to $3 million. Executor ignored several requests for an accounting over the years. Executor has yet to obtain a clearance certificate from CRA. Discussion of the requirement for executors to remain neutral in the discharge of their duties. Master Berthaudin found both the executor and his lawyer delayed the winding up of this matter. Executor must return funds he withdrew against the estate and will receive no compensation for his work.

Ian Spiegel. Here come the new reporting requirement for trusts, The Lawyer’s Daily, February 8, 2022.  

Legislation


Federal

House of Commons

44th Parliament, 1st Session
C-233
An Act to amend the Criminal Code and the Judges Act (violence against an intimate partner)
Progress: At second reading in the House of Commons
Show Details

44th Parliament, 1st Session
C-240
An Act to amend the Income Tax Act (donations involving private corporation shares or real estate)
Progress: At second reading in the House of Commons
Show Details

44th Parliament, 1st Session
C-242
An Act to amend the Immigration and Refugee Protection Act (temporary resident visas for parents and grandparents)
Progress: At second reading in the House of Commons
Show Details

Senate

44th Parliament, 1st Session
S-213
An Act to amend the Criminal Code (independence of the judiciary)
Progress: At second reading in the Senate
Show Details

44th Parliament, 1st Session
S-205
An Act to amend the Criminal Code and to make consequential amendments to another Act (interim release and domestic violence recognizance orders)
Progress: At second reading in the Senate
Show Details

Royal assent received

44th Parliament, 1st Session
C-3
An Act to amend the Criminal Code and the Canada Labour Code
Statute of Canada: 2022, c. 27
Progress: Royal Assent
Show Details



Provincial

News: Province appoints 11 Manitoba Lawyers to Queen’s Counsel for 2021, Manitoba News Release, January 25, 2022

The Manitoba government has appointed 11 Manitoba lawyers as Queen’s counsel to recognize their extraordinary contributions to the practice of law […] Queen’s counsel is an honorary title given to a lawyer by the lieutenant-governor in council, based on recommendations made by the minister of justice following consultation with an advisory council. […] After stopping these appointments in 2001, the Legislative Assembly of Manitoba passed the Queen’s Counsel Act in 2018 and restored Queen’s counsel appointments for Manitoba lawyers.

News: Province announces appointment of associate chief judge, Manitoba News Release, January 21, 2022

The Manitoba government has appointed Judge Donovan Dvorak as an associate chief judge of the provincial court of Manitoba […] Dvorak was appointed to the provincial court of Manitoba in 2013 and currently sits in Brandon. He was previously appointed to the provincial court of Saskatchewan in 2018. […] Dvorak replaces Associate Chief Judge Malcolm McDonald, who retired earlier this month.

The House adjourned on December 2nd 2021 and stands adjourned until March 2nd, 2022, or to the call of the Speaker.

ChapterTitle     (provisions)Date in forceDate signedProclamation
SM 2021, c. 39The Public Schools Amendment and Manitoba Teachers’ Society Amendment Act
whole Act
31 Jan 202226 Jan 2022Proclamation

Orders in Council

Fatality Inquiries Act (Feb 2)
Transportation Infrastructure Act (Feb 2)
Community Childcare Standards Act (Jan 19)

ONSC on service to Google

Google reviews – you either love ’em or hate ’em. Negative reviews can do unimaginable harm to your reputation and there is often little you can do to remove them. One company in Ontario, however, is trying to do just that. This Pre-Claim Injunction explains the interaction between Rules 37.17 and 16.01 of the Rules of Civil Procedure in determining whether email notification is acceptable as personal service.

[17]           In most cases, I would not be satisfied that when Myers J. sent the motion back to Obsidian’s counsel to be brought “on notice”, he meant notice by something other than the personal service required for an originating process. This was, after all, the first missive in this action (or proposed action) that Google, as defendant, would have received. However, Google is an unusual respondent in certain respects, and its uniqueness may impact on the way in which the ambiguity between Rule 16.01 and Rule 37.17 is interpreted.

Since Google has three dedicated email addresses dealing with litigation, Morgan, J. accepted that notice had been given. The interim injunction and Norwich Order sought was granted.

Obsidian Group Inc. v. Google LLC, 2022 ONSC 848